Kandyans urged for 3 federal states in 1928 and 1947
by Lakshman Kirielle, Minister of Plantation Industries
After years of colonial rule, when Sri Lanka was on the way to constitutional reform, the Donoughmore Commission was set up by the British Government in 1928 and several representations were made to the Donoughmore Commission. The most liberal and farsighted memorandum was set to the commissioners by the Kandyan leaders at that time.
Kandy town in the Central hills
They pointed out to the commissioners that for nearly hundreds of years before the coming of the Portuguese, Sri Lanka was divided into three Kingdoms of Ruhunu, Maya and Pihiti and if the British were to depart at a particular time, they should create three self-government areas comprising:
- The Northern and Eastern Provinces in which the Tamils predominate
- The Kandyan Provinces
- The Southern and Western Provinces peopled mainly by low country Sinhalese.
Each of these three communities would thus be granted a government of its own, the Kandyans would preserve their national identity and would no longer be in danger of being sacrificed to the pressure from the South and North. For purposes affecting the welfare of the entire island, these three governments would be united in a federal government, thus ensuring that no one section would be in a position to dominate the others.
It is our duty to mention at this moment the names of the delegates who represented the Kandyan community at that time. They were:
- H. Meedeniya – Adigar (Leader)
- B. Nugawela Disawa, J. C. Ratwatte Disawa, T. B. Panabokka, J. A. Halangoda, A. Godamunne, A. W. Mediwaka, U. B. Dolapihilla, N. B. Galagoda, L. B. Girihagama, W. Talgodapitiya, T. B. L. Moonemalle, G. E. Madawala, F. D. Dissanayake, K. B. Beddewala, Roland Tennekoon, A. T. W. Marambe, Dr. T. B. Kobbekaduwa, P. B. Dolapihilla and W. Gopallawa.
- They suggested that a federal form of government should be formed in Sri Lanka with the centre holding such important issues like foreign policy, defence and other key issues that they feel should be kept with the centre. This point of view was strongly urged by the Kandyan leaders, but the commissioners rejected the memorandum of the Kandyan leaders.
Just before independence in 1948, the Soulbury Commission came to Sri Lanka. The Kandyan leaders made a similar claim of the creation of three self-governing Federal Regional Councils, but this request too was turned down. In retrospect, if this was done and if devolution was granted at the point of independence, like in India, we would not face the present unfortunate situation in our country.
The commissioners held, “The arguments of the Kandyan leaders were compelling and historically accurate.” However due to pressure from Western educated Colombo leaders who did not want to share power of commissioners rejected the memorandum of the Kandyan leaders.
1947-1948 was the best hour for devolution as there was extreme cordiality between all communities in Sri Lanka and a strong mediator in Britain.
The representatives to the Soulbury Commission were:
- B. Panabokke, B. H. Aluwihare, P. Dolapihilla, H. K. Keerthiratne, V. C. Udalagama, H. Ratwatte, Halangoda, H. W. Mediwake, A. E. Illukkumbura, J. A. Dhanapala, G. C. Leelaratne, U. B. Kulatunga, H. B. Kirimetiyawa, Rajakaruna Vedamahathmaya, H. Sunderasekera.
Though the Kandyan demand for self-government has died down the Tamil demand persisted, resulting in the unfortunate situation in our country.
If power was devolved like in India at the point of independence the situation in this country would have been totally different. The Kandyan leaders were called backward and living in the past, but in retrospect if the suggestions of the Kandyan leaders were accepted the unfortunate situation in this country would have been totally avoided. They were the first leaders in Sri Lanka to speak of devolution openly, keeping in mind the historical kingdoms, that existed before the coming of the colonial rulers. They were futuristic and far ahead of their time in thinking.
After years of colonial rule in 1947, when India was granted independence, a new constitution was drafted. The patriotic Indian rulers who were poised to be rulers of that country after independence were conscious of the historic diversity that existed before the coming of the British. They realised that once the British departed unless power was shared by the Centre with periphery, the old feuds, difference between the old kingdoms would once again surface. New Indian states were created more or less out of the ancient kingdoms and they devolved a great deal of autonomy to these states.
The centre keeping Foreign Affairs and Defence brought policy and other key issues. For example, though the national language of India is Hindi, the respective states were granted the liberty to use their own languages in the day-to-day affairs of the respective states. Imagine what would be the situation if Indian rulers tried to force Hindi on all the states of the Indian Union. The situation would have been chaotic. So today after 50 years of Indian independence we have a situation where he from Tamil Nadu, Gujarat, West Bengal is proud to call himself an Indian first with a strong sense of Indian identity. The cultural, religious and language rights are safeguarded in the respective states. At the same time they consider themselves a part of a great Indian nation.
Rulers at the point of independence were generous enough to share power with the respective states rather than attempt to keep all the power selfishly in Delhi. If this was not done, there would have been friction within a short time after independence which would have led to the disintegration of the Indian Union Sri Lankan experience
When the Portuguese came to Sri Lanka in 1505, the situation in Ceylon was very similar to the situation in India when the British went there. Just like India, in Sri Lanka too there were several kingdoms. Mrs. Lorna Devaraja who is a well-known historian in her book “The Kandyan Kingdom”, mentions that when the Portuguese first came to Sri Lanka in the beginning of the 16th century there were three kingdoms of varying politics and economic importance in the island. Foremost was the kingdom of Kotte occupying the west and the south west of the island, whose king claimed a nominal overlordship over the whole of Sri Lanka. A separate dynasty was ruling in Kandy having broken away from the authority of the Kotte King. The founder of this dynasty was according to tradition, Senasmmata, Vikramabahu. Ever since the middle of the thirteenth century there had also been an autonomous Tamil ruler in Jaffna. This view was supported by all leading historians.
So in Sri Lanka like in India there were basically three kingdoms when the Portuguese came. The Mahawansa confirms this position by stating that from ancient times Sri Lanka was divided into three kingdoms Ruhunu, Maya and Pihiti. Three treaties were signed by the respective rulers of these kingdoms with the foreign invaders. There was the Nallur convention by which King Sangili ceded the kingdoms of Jaffna to the Portuguese. Then there was a Malwana convention whereby the low country was ceded to the Dutch.
Then finally, the convention by which the Kandyan territory was ceded to the British. Further proof of the existence of the three kingdoms is again a system of laws prevailing in the three regions.
In Jaffna the Thesa Walamai Law operates. In the low country the Roman Dutch Law operates and in the Kandyan areas Kandyan Law operates. So it is well established that in Sri Lanka there were three kingdoms for a very long period of time confirmed by the three treaties and also the three personal laws applicable to the respective areas. It is on this basis that the Kandyan leaders made their observations in 1928 and 1947.
If devolution of power was done at independence Sri Lanka would have been spared the present crisis. Genuine devolution is 50 years late.
தமிழீழக் கோரிக்கை கைவிடப்பட்டுவிட்டதா? – சடாயு
சிறிலங்கா அரசாங்கத்துக்கும்,தமிழீழ விடுதலைப் புலிகளுக்குமிடையே நோர்வேயில் இறுதியாக நடைபெற்ற முதலாம் கட்ட மூன்றாம் சுற்றுப் பேச்சுக்களில், பிரச்சினைக்குத் தீர்வாக சமஷ்டி அமைப்பை ஏற்றுக்கொள்வது என்கின்ற இணக்கம் காணப்பட்டதையடுத்து பல்வேறு அபிப்பிராய பேதங்கள் மக்கள் மத்தியில் தோன்றியுள்ளன. இது தொடர்பில் தமிழ் மக்கள் மத்தியிலும், சிங்கள மக்கள் மத்தியிலும் மாறுபட்ட அபிப்பிராயங்கள் காணப்படுவதுடன், தமிழ் மக்கள் மத்தியில், குறிப்பாப் புலம்பெயர்ந்து வெளிநாடுகளில் வசித்துவரும் தமிழ் மக்கள் மத்தியில் பல குழப்பகரமான நிலைப்பாடுகள் தோன்றியுள்ளதை அவதானிக்கமுடிகிறது.
சில தினங்களுக்கு முன்னர் புலம்பெயர்ந்து வெளிநாடு ஒன்றிலிருக்கும் எனது நண்பர் ஒருவர் என்னுடன் தொடர்புகொண்டபோது, புலம்பெயர்ந்த நாடுகளில் தமிழ்மக்கள் மத்தியில் காணப்படும் இந்தக் குழப்பமான நிலைப்பாடுகள் குறித்து என்னிடம் பிரஸ்தாபித்தார். இவர்போன்ற சிலர் எனக்குத் தெரிவித்த அபிப்பிராயங்களிலிருந்தும், சில தமிழ் ஊடகங்களில் வெளியான செய்திகள், கட்டுரைகளை அடிப்படையாக வைத்தும் நோக்கும்போது குறிப்பாக இரண்டு நிலைப்பாடுகள் இன்று தமிழர்களிடையே காணப்படுவதை அவதானிக்க முடிகிறது.
1) 11) சமஷ்டித் தீர்வை ஏற்றுக்கொண்டதன் மூலம் புலிகள் தமிழீழக் கோரிக்கையைக் கைவிட்டுவிட்டார்கள் என்பது.
2) 2) சமஷ்டித் தீர்வு ஏற்றுக்கொள்ளப்பட்டதன்மூலம் தமிழர்களுடைய பிரச்சினைகளுக்கு ஒரு முடிவு எட்டப்பட்டுவிட்டது என்பது.
இரண்டுமே விவாதத்துக்குரிய கருத்துக்களாகவே உள்ளன. இரண்டு நிலைப்பாடுகளுமே தமிழர்களுடைய இனப்பிரச்சினை வரலாற்றையும், அதன் இன்றைய நிலையையும் சரியாகப் புரிந்துகொள்ளாத அவசர நிலைப்பாடுகள் என்றே கூறவேண்டும். இந்தக் குழப்பங்கள் தொடர்பில் ,விடுதலைப் புலிகளின் அரசியல் ஆலோசகர் அன்ரன் பாலசிங்களம் அவர்கள் ஒஸ்லோவில் தமிழ் பத்திரிகையாளர்களிடையே பேசும்போது விளக்கமளித்திருந்தார். தமிழீழத் தேசியத் தலைவர் மேதகு வேலுப்பிள்ளை பிரபாகரன் அவர்களது இம்முறை மாவீரர்தின உரையையும், கலாநிதி அன்ரன் பாலசிங்கம் அவர்களது ஒஸ்லோப் பத்;திரிகையாளர் மாநாட்டு உரையையும் சரியாகக் கவனிப்பவர்களுக்கு இந்தக் குழப்பங்களுக்கான தீர்வு இலகுவில் கிட்டும்.
இதில் முதலாவது பிரச்சினை விடுதலைப் புலிகள் தமிழீழக் கோரிக்கையைக் கைவிட்டுவிட்டார்களா என்பது. சமஷ்டிக் கோரிக்கையை ஏற்பதென்பது, தமிழீழக் கோரிக்கையைக் கைவிடுவதற்குச் சமனானது என்கின்ற ஒரு தப்பபிப்பிராயமே இந்தக் குழப்பம் ஏற்படக் காரணமாகிறது. இதனைப் புரிந்துகொள்ள, நாம் முதலில் சமஷ்டிக் கோரிக்கையின் வரலாற்றைப் புரிந்துகொள்ள வேண்டியவர்களாகிறோம்.
இந்த சமஷ்க் கோரிக்கையை இலங்கையில் முதலில் முன்வைத்தவர்கள் தமிழர்களல்ல. கண்டி மேல்நாட்டுச் சிங்களவர்களே, ஆங்கிலேய ஆட்சிக் காலத்தில் இந்தக் கோரிக்கையை முன்வைத்திருந்தனர். ஆங்கிலேயரின் ஆக்கிரமிப்புக் காலத்தில், டொனமூர் சீர்திருத்தம் பற்றிய பரிசீலனை மேற்கொள்ளப்பட்ட சமயம், கண்டிச் சிங்களவர்கள் இலங்கையில் சமஷ்டி அமைப்பைத் தோற்றுவிப்பதற்கான கோரிக்கையை முன்வைத்திருந்தனர்.
1926ஆம் ஆண்டு, ஜுலை மாதம் 17ஆம் திகதி யாழ்ப்பாணத்தில் வைத்து தற்போதைய ஜனாதிபதி சந்திரிகாவின் தகப்பனார் அமரர் எஸ்.டபிள்யூ.ஆர்.டீ.பண்டாரநாயகா சமஷ்டித் தீர்வுபற்றிப் பிரஸ்தாபித்திருந்தார். 1940ஆம் ஆண்டு ஜுலை மாதம் 20ஆம் திகதி நேருவுக்கு எழுதிய கடிதம் ஒன்றில், இந்தியாவுடன் இணைந்த ஒரு சமஷ்டியாக இலங்கையை ஆக்குவது தொடர்பில் முன்னாள் ஜனாதிபதி ஜே.ஆர்.ஜெயவர்த்தன பிரஸ்தாபித்திருந்தார். தொடர்ந்து 1942, மே, ஆறாம் திகதி வுiஅநள ழக ஐனெயை வில் வெளியான பேட்டியொன்றில் அமரர் டி.எஸ்.சேனாநாயகாவும் சமஷ்டி பற்றிப் பிரஸ்தாபித்திருந்தார்.
ஆனால் இதே கோரிக்கையைத் தமிழர்கள் முன்வைத்தபோது, சிங்கள ஆட்சியாளர்களுக்கு அது கசப்பான ஒன்றாகிவிட்டமைதான் வேதனையானது. தமிழர்கள் இந்தக் கோரிக்கையை முன்வைக்க நிர்ப்பந்திக்கப்பட்டது, 1956ஆம் ஆண்டு சிங்களம் மட்டும் சட்டத்தைத் தொடர்ந்து தமிழர்கள்மீது கட்டவிழ்த்துவிட்ப்பட்ட ஒடுக்குமுறைகளாலேயேயாகும். ஒரே நாடு என்கின்ற கோட்பாட்டை மீறாதபடி, தமிழர்களுக்கு தனியான ஆட்சியலகை வழங்கும்வகையில் சமஷ்டி அமைப்பைக் கொண்டுவருமாறு அப்போது தந்தை செல்வா கோரிக்கை விடுத்தார். இது கூட சிங்கள அரசின் தமிழர்கள்மீதான ஒடுக்குமுறையால் எழுந்த ஒரு கோரிக்கையேயாகும்.
ஆனால் தமிழர்களின் இந்த நியாயமான கோரிக்கை நிராகரிக்கப்பட்டதுடன், இந்தக் கோரிக்கையை முன்வைத்து அவர்கள் நடாத்திய சாத்வீகப் போராட்டங்கள்மீது வன்முறை கட்டவிழ்த்துவிடப்பட்டது. எந்த வழிகளிலும் சி;ங்கள அரசாங்கத்திடமிருந்து நீதியைப் பெற்றுக்கொள்ளமுடியாது என்ற நிலை தோன்றியதையடுத்தே, ~வட்டுக்கோட்டைப் பிரகடனம|; என பிரபலமாக அறியப்பட்ட பிரகடனத்தின் மூலம் பிரிந்துசென்று தனியரசமைக்கும் முடிவு தமிழரசுக் கட்சியால் முன்வைக்கப்பட்டது. 1977இல் நடைபெற்ற தேர்தலில் ஈழத்தமிழர்கள் இந்த நிலைப்பாட்டிற்கு ஆதரவாக வாக்களித்து, தமிழீழப் பிரகடனத்துக்குத் தமது ஏகமனதான ஆதரவைத் தெரிவித்திருந்தனர். தாம் முன்வைத்த இந்தத் தீர்;வினை முன்னெடுத்துச் செல்லும் தைரியம் தமிழரசுக்கட்சி அல்லது தமிழர் விடுதலைக் கூட்டணிக்கு இல்லாமல் போனபோது, தமிழ் இளைஞர்கள் வேறுவழியின்றி ஆயுதப் போராட்டத்தை ஆரம்பிக்க நிர்ப்பந்திக்கப்பட்டனர்.
இங்கு நாம் கவனிக்கவேண்டியது என்னவெனில், தம்மீது அடக்குமுறை கட்டவிழ்த்துவிடப்பட்டு, தாம் இந்த நாட்டின் சம பிரஜைகளாக நடாத்தப்படாத நிலையிலேயே தமிழர்கள் சமஷ்டித் தீர்வினை முன்வைத்தனர் என்பதும், நியாயமான இந்தக் கோரிக்;கை நிராகரிக்கப்பட்டதுடன், அவர்களது சாத்வீக ரீதியான அமைதிப்போராட்டம் வன்முறைகளை எதிர்கொள்ள வேண்டியேற்பட்டபோதே அவர்கள் வன்முறைகளை வன்முறையால் எதிர்கொண்டு, பிரிந்துசென்று தனியரசமைக்க முற்பட்டனர் என்பதுவுமேயாகும்.
ஆக, தமிழர்கள் ஒருபோதுமே இந்த நாட்டைத் துண்டாடவேண்டும் என்ற வெறியுடனோ, அன்றி தனியரசமைத்தேயாகவேண்டும் என்று தாமாகவோ முடிவெடுக்கவில்லை. ஆங்கிலேய ஆக்கிரமிப்பாளர்கள் இந்த மண்ணைவிட்டுச் செல்லும்போது ஆட்சியதிகாரத்தைச் சிங்களவர்களிடம் மட்டுமே கையளித்துச் சென்ற நிலையில், அவர்கள் தமிழர்களுக்குரிய உரிமைகளை மறுத்ததால், இந்தத் தீவு அந்நிய ஆக்கிரமிப்புக்களுக்கு முன்னர் இருந்ததுபோலவே, தமிழர்களும் சிங்களவர்களும் தனித்தனி இராச்சியங்களுடன் இருப்பதே பொருத்தம் என்கின்ற முடிவுக்குத் தமிழர்கள் வந்தனர். அதையும் சிங்கள தேசம் மறுதலித்து, தமிழர்கள் மீது போர்தொடுத்தபோதே, பிரிந்து சென்று தனிநாடமைக்கவேண்டிய நிர்ப்பந்தம் தமிழர்களுக்கு ஏற்பட்டது.இங்கே நாம் மீண்டும் ஊன்றிக் கவனிக்கவேண்டியது என்னவெனில், இது ஒரு நிர்ப்பந்தமேயன்றி, தமிழர்களது இயல்பான அபிலாசையல்ல. தனியரசமைக்கின்ற இறுதியான தீர்மானத்துடன் ஒரு ஆயுதப் போராட்டத்தை நடாத்தி, அதில் வெற்றிநடை போட்டுக்கொண்டிருந்த சமயத்திலும், நியாயமான தமிழர்களது அபிலாசைகள் தீர்க்கப்பட்டால், அவர்கள் தனியரசுக் கோரிக்கையைக் கைவிடத்தயார் என்பதை வலியுறுத்தியே வந்துள்ளனர்.
தமிழர்களது இந்த அபிலாசைகள் என்பது எவை?.இது ஆயுத வழியிலான தமிழர் விடுதலைப் போராட்டம் கூர்மையடையத் தொடங்கிய காலத்தில்,இந்திய அனுசரணையுடன் நடைபெற்ற திம்புப் பேச்சுவார்த்தைகளின்போதே தமிழர் தரப்பால் தெளிவாக முன்வைக்கப்பட்டிருந்தது.
1) 1) தமிழர்களுடைய சுயநிர்ணய உரிமை
2) 2) தமிழர்கள் ஒரு தேசிய இனம்
3) 3) வடக்குக் கிழக்கு இணைந்த தமிழர்களுடைய பாரம்பரிய தாயகம்.
4) என்பவையே இந்த அபிலாசைகளாகும்.
அப்போது ஆட்சியில் இருந்த ஜே.ஆர்.ஜெயவர்த்தன இந்தக் கோரிக்கையை ஏற்க மறுத்தார். தனியரசமைத்தலுக்கு மாற்றீடாக தமிழர்கள் முன்வைத்த இந்த நியாயமான கோரிக்கையையும், ஜே.ஆர்.அரசு பிரிந்துசெல்வதற்கான சதி எனவே வர்ணித்தது. அப்போது மட்டுமன்றி, அதன்பின்னர் நடைபெற்ற எல்லாப் பேச்சுக்களின்போதும் தனியரசமைப்பதற்கு மாற்றீடான தீர்வு ஒன்றுபற்றித் தமிழர்கள் பிரஸ்தாபித்தே வந்துள்ளார்கள். எனவே உரிமைகள் மறுக்கப்படுகின்ற, நியாயமான கோரிக்கைகள் நிராகரிக்கப்படுகின்ற ஒரு கட்டத்திலேயே, ஒரே அமைப்புக்குள் தீர்வு கிட்டாது என்ற நிலையில் தனியரசு அமைக்க தமிழர்கள் நிர்ப்பந்திக்கப்பட்டார்களேயன்றி, தனியரசே தமிர்களின் கோரிக்கை என்று அர்த்தப்படாது.
தமிழீழத் தேசியத் தலைவர் மேதகு வேலுப்பிள்ளை பிரபாகரன் அவர்கள் தமது மாவீரர் தின உரைகளிலும், சமாதானத்துக்குத் தமிழர்கள் தயாராக இருக்கின்றார்கள் என்பதைப் பலதடவைகள் வலியுறுத்;தி வந்துள்ளார்கள். தமிழீழத்துக்கு மாற்றீடான தீர்வை ஏற்றுக்கொள்ளத் தமிழர்கள் எப்போதும் தயாராகவே இருக்கின்றார்கள் என்பதை அவர் மீண்டும் மீண்டும் வலியுறுத்தி வந்துள்ளார். பிரச்சினை என்னவென்றால், அத்தகைய மாற்றுத் தீர்வெதனையும் முன்வைக்கச் சிங்கள அரசுகள் தயாராக இருக்கவி;ல்லை. மாறாக, தமிழர்களை முற்றாக அழித்தொழித்தல் என்கின்ற நோக்குடனே சிங்கள அரசுகள் தமிழர்கள்மீது போர் தொடுத்து வந்தன. இதன் காரணமாக, வேறெந்தத் தீர்வுக்கும் சிங்கள அரசுகள் உடன்படாது என்கின்ற நிலையில், தமிழீழம் ஒன்றே தீர்வு என்கின்ற நிலைப்பாடு படிப்படியாக வலுப்பெறலாயிற்று. இதுவே தமிழர்களுக்கு ஒரே மார்க்கமுமாயிற்று.
இந்த நிலையில், தனிநாட்டுக்கான போராட்டத்தை வேறு வழியின்றித் தீவிரப்படுத்திய தமிழர்கள், தொடர்ச்சியாக அதில் பல வெற்றிகளைச் சாதிக்கத் தொடங்கினர். இந்த சாதனைகளின் உச்சம், ஆனையிறவுச்சமர் வெற்றியின்போது நிச்சயிக்கப்பட்டது. ஆனையிறவுப் போரில் விடுதலைப் புலிகள் படைத்த மகத்தான சாதனை, போரியல் வரலாற்றிலேயே ஒரு புதிய அத்தியாயத்தை எழுதியதுடன், தமிழீழத் தனியரசு என்கின்ற தமிழர்களின் இலக்கைத் தெளிவாக எதிர்வு கூறுவதாக அமைந்திருந்தது.
இதனைத் தொடர்ந்தே தமிழர்தரப்பால் முன்மொழியப்பட்ட மாற்றுத் தீர்வுபற்றிச் சிந்திக்கச் சிங்கள அரசு தயாரானது. தமிழர்களைப் போர்மூலம் வெற்றி கொண்டுவிட முடியாது என்கின்ற யதார்த்தத்தை கட்டுநாயக்கா அனுபவமும் சிங்கள தேசத்துக்குத் தெளிவாக உணர்த்தியது. இத்தகைய ஒரு பலமான நிலையில் இருந்துகொண்டும், சமாதானத் தீர்வுக்குத் தயாராக இருக்கின்ற தமது நிலைப்பாட்டைத் தமிழர்கள் வெளிப்படுத்தியபோது, சிங்கள தேசம் அதனைக் கெட்டியாகப் பிடித்துக்கொண்டது. ஒரு வெறும் அரசியல் தலைவர் என்கின்ற நிலையில் நின்றுகொண்டு தந்தை செல்வா அப்போது சமஷ்டியை கோரியபோது அதனை உதாசீனம் செய்த சிங்கள தேசம், படைப்பல ரீதியில் வலுவடைந்த நிலையில் தமிழர்களின் ஏக பிரதிநிதிகளாக நின்று விடுதலைப் புலிகள் அந்தக் கோரிக்கையைப் பரிசீலிக்கத் தயார் என்றபோது மறுப்பின்றி அதனை ஏற்றுக்கொள்ள நிர்ப்பந்திக்கப்பட்டது.
சரி, படைப்பல ரீதியாகப் வலுவான நிலையில் இருந்துகொண்டும், ஏன் இத்தகைய ஒரு சமஷ்டித் தீர்வுக்குத் தமிழர் தரப்பு இணங்கவேண்டும்?. ஆனையிறவைத் தகர்த்தெறிந்து, யாழ் குடாநாட்டிலிருந்த நாற்பதினாயிரத்துக்கும் மேற்பட்ட படையினரையும் துவம்சம் செய்யக்கூடிய நிலையிலிருந்த புலிகள், ஏன் அத்தகைய ஒரு வலுவான நிலையில், சிங்கள தேசத்துடன் சமாதானத்துக்கு முயன்றது?. இந்த இடத்தில்தான் நாம் தெளிவாக ஒன்றை அவதானிக்க வேண்டியிருக்கிறது. ஆனையிறவுப் போரின் வெற்றி, தமிழீழப் போராட்ட வரலாற்றின் முக்கியமான ஒரு அத்தியாயத்தின் இறுதி அங்கம் போன்றே அமைந்திருந்தது. அதாவது தமிழர் தாயகப் பிரதேசத்தை ஆக்கிரமித்திருந்த சிறிலங்காப் படைகளை முற்றாக அவர்களது மண்ணிலிருந்து விரட்டியடிக்கக்கூடிய வலுவான நிலைக்கு தமிழர்களது படைவலிமை வளர்ந்துவிட்டது என்பதை ஆனையிறவுப் போர் முடிவுகள் சர்வதேசத்துக்கும் உணர்த்தியது.யாழ் குடாநாட்டில் நிலைகொண்டிருந்த நாற்பதினாயிரத்துக்கும் மேற்பட்ட படையினரைக் காப்பாற்றுவதற்கு அந்த நேரத்தில் இந்தியாவின் உதவியை நாடவேண்டிய நிலை சந்திரிகா அரசுக்கு ஏற்பட்டதென்பது,நிலைமையின் தீவிரத்தன்மையைத் தெளிவாக உணர்த்தியது. இதற்குமேல் புலிகளை இராணுவ ரீதியாக வெற்றிகொள்ள முடியாது என்கின்ற உண்மையை இதன்மூலம் சிறிலங்கா அரசு மறைமுகமாக ஏற்றுக்கொண்டுவிட்டது. இதனைச் சர்வதேச நாடுகளும் தெளிவாக உணர்ந்து கொண்டுவிட்டன.
இந்தச் சூழ்நிலைகள் எல்லாம் தெளிவாக உணர்த்திநின்றது ஒரு செய்தியைத்தான். அதாவது, தமிழீழத் தனியரசை அமைக்கக்கூடிய ஒரு நிலைக்குப் புலிகள் வந்துவிட்டார்கள் என்பதே அவ்வுண்மை. இந்நிலையில், போராட்டத்தை அடுத்த கட்டத்துக்கு நகர்த்த வேண்டியது அவசியமாகிறது. அதாவது, தமிழர்கள் பிரிந்துசென்று தனியரசமைக்கவேண்டிய தேவையின் நியாயப்பாட்டை சர்வதேச நாடுகள் உணர்ந்து கொள்ளுமாறு செய்ய வேண்டியது அவசியமாகிறது. இப்போது தமிழர்களது போராட்டம் தமிழீழப் பிரதேசத்திலிருந்து, சர்வதேச மட்டத்துக்கு விஸ்தரிக்கப்படுகிறது.
உலகில் ஒரு புதிய நாடு உருவாகுவதானால் அதற்குச் சர்வதேச அங்கீகாரம் அவசியமாகிறது. சர்வதேசம் தமிழர்களின் தனியரசுக் கோரிக்கையை அங்கீகரிக்க வேண்டுமானால், அது சர்வதேசங்களினால் அங்கீகரிக்கப்பட்ட நியமங்களுக்கு உட்பட்டதாக அமைந்திருக்கவேண்டும். தற்போதுள்ள நிலையில் சர்வதேச நாடுகளின் உடனடி அங்கீகாரத்தைப் பெறக்கூடியதாக இருப்பது சமஷ்டித் தீர்வேயாகும். உள்ளக சுயநிர்ணய உரிமையினடிப்படையில் எழும் இந்தச் சமஷ்டித் தீர்வு ஐக்கிய நாடுகள் ஸ்தாபனத்தின் அங்கீகாரத்தையும் பெற்ற ஒன்றாகும். எனவேதான் புலிகள் அத்தகைய ஒரு தீர்வைப் பரிசீலிக்கத் தாம் தயார் என அறிவித்திருந்தனர்.
தனிநாட்டுக் கோரிக்கைக்கு மாற்றீடாக உள்ளான சுயநிர்ணய உரிமையை அங்கீகரிக்கும், தமிழர்கள் தம்மைத் தாமே ஆளுகின்ற ஒரு பிரதேச சுயாட்;;சித் திட்டத்தைப் பரிசீலிக்கத் தயார் என்கின்ற தமது நிலைப்பாட்டைத் தமிழீழத் தேசியத் தலைவர் தனது மாவீரர்தின உரையில் தெரிவித்ததும், அதனை சர்வதேச நாடுகள் அங்கீகரித்துள்ளமையானது, சர்வதேச அளவில் தமிழர்களது போராட்டத்துக்குக் கிடைத்துள்ள ஒரு அங்கீகாரமாகும். சர்வதேச அளவில் தமிழர்களது போராட்டத்தின் நியாயப்பாடு புரிந்துகொள்ளப்பட்டுள்ளதாலேயே, சுயாட்சித் திட்டத்தை அது அங்கீகரித்துள்ளது.
இந்த நிலையில், தமிழர்கள் கோரும் இந்தச் சுயாட்சித் திட்டம் சிங்கள அரசினால் மறுக்கப்பட்டால், அல்லது மீண்டும் தமிழர்கள் ஏமாற்றப்படுகின்ற ஒரு சூழல் தோன்றினால், அதன் நியாயப்பாட்டை சர்வதேசம் புரிந்துகொள்ளும். எனவே, சர்வதேச அளவில் மேற்கொள்ளப்பட்ட இந்தக் காய்நகர்த்தலானது, தமிர்களது நியாயமான கோரிக்கைகள் ஏற்றுக்கொள்ளப்படாதவிடத்து, பிரிந்துசென்று தனியரசமைப்பதற்கான ஒரு அங்கீகாரத்தையும் தற்போது தமிழர்களுக்குப் பெற்றுத் தந்திருக்கிறது. இது தமிழர்களுடைய போராட்டத்தை மேலும் முன்னோக்கி உந்தித் தள்ளியிருக்கிறது.
புலிகள் ஒரு பிரதேச சுயாட்சித் திட்டத்தைப் பரிசீலிக்கத் தயார் என்று கூறியிருக்கிறார்களேயொழிய, தனிநாட்டுக் கோரிக்கையைக் கைவிடுவதாகவோ, ஆயுதங்களைக் கைவிடுவதாகவோ அறிவிக்கவில்லை. தமிழர்களுடைய உரிமைகள் மறுக்கப்படக்கூடிய ஒரு சூழலில் மீண்டும் ஆயுதப் போராட்டத்தை ஆரம்பிக்க புலிகள் எப்போதும் தயாராகவே இருக்கிறார்கள் என்பதனை தேசியத் தலைவர் அவர்களது உரை தெளிவாக உணர்த்தியுள்ளது. தேசியத் தலைவரது உரைபற்றிய தமது கருத்துக்களை வெளியிட்ட மேனாட்டு மற்றும் சிங்கள அரசியல் ஆய்வாளர்களும், அவரது உரை தமிழீழக் கோரிக்கையைக் கைவிடுவதாகக் கூறவில்லை என்கின்ற உண்மையைச் சுட்டிக்காட்டியுள்ளமையையும் நாம் கவனத்தின் கொள்ளNவுண்டும். எனவே, தமிழீழக் கோரிக்கை கைவிடப்பட்டுவிட்டது என்று கருதுவது பொருத்தமற்ற ஒரு கணிப்பாகும்.
தற்போதைக்குச் சிங்கள தேசம் சமஷ்டித் தீர்வு என்கின்ற ஒரு கொள்கையளிவிலான இணக்கப்பாட்டுக்கு மட்டுமே வந்திருக்கிறது. இந்தச் சமஷ்டி எவ்வாறு அமையப்போகிறது என்பதைப் பொருத்தே இந்த இணக்கப்பாட்டின் வெற்றி, தோல்விகள் அமைய முடியும். இது அவ்வளவு இலகுவான காரியமல்ல. காலாகாலமாக தமிழர்களை ஏமாற்றியே பழக்கப்பட்டு வந்த சிங்கள அரசியல்வாதிகளின் ஒருசாரார் மட்டுமே தமிழர்களது உரிமைகள் அங்கீகரிக்கப்படவேண்டும் என்கின்றதொரு முடிவுக்கு வந்துள்ளனர். (இந்த முடிவும் தவிர்க்கமுடியாமல் எட்டப்பட்டுள்ள ஒன்று). இவர்கள் இந்த முடிவில் எவ்வளவு தூரம் முன்னேறுவார்கள் என்பது, இவர்களது நேர்மைத் தன்மையிலும், தமிழர்களுக்கு உரிமைகளை வழங்கவே கூடாது என்று வலியுறுத்திவரும் மிகுதிச் சிங்களத் தலைமைகளின் எதிர்ப்புக்களை இவர்கள் எவ்வாறு வெற்றி கொள்ளப்போகிறார்கள் என்பதிலுமே தங்கியுள்ளது. இது குறுகியகாலத்துக்குள் நடந்துவிடக்கூடிய ஒரு அதிசயமல்ல. நீண்ட நெடும் பயணம். அதற்குள் தமக்குத் தீர்வு கிட்டிவிட்டதாக தமிழர்கள் அவசரப்பட்டு மகிழ்ச்சியடைந்துவிடமுடியாது.
Supreme Court says Quebec can’t separate unilaterally
Aug 20, 1998
The Supreme Court of Canada has ruled that Quebec cannot separate from Canada unilaterally.
|Canada must negotiate if Quebec votes yes in a referendum|
The court was asked by the federal government to make a legal judgement on Quebec separation. The court said it cannot unilaterally happen within Canadian law or within international law.
It said separation would have to be negotiated with the federal government and the provinces. It means that if Quebec votes in favour of separation, it would be necessary for negotiations to begin with the rest of the country. The Supreme Court also says there must be a clear majority on a clear question in a referendum.
Quebec’s Intergovernmental Affairs Minister Jacques Brassard says the ruling won’t have much of an impact on Quebec’s plans. He said an absolute majority of 50 per cent plus one vote in the next referendum on independence would be enough to start the process of secession.
“We think that 50 plus one will permit us to launch the process of sovereignty,” he said.
The high court also said aboriginal rights would have to be taken into account in any future negotiations on separation, although the nine judges gave no specifics.
Matthew Coon-Come, grand chief of Quebec’s Cree, said he interpreted the judgment to mean the court recognized the protection of native rights in the Constitution.
The Canadian dollar was largely unaffected by the decision. It went up shortly after the announcement, and held steady throughout the day. The TSE was down slightly by the end of the day.
Questions the court was asked to answer:
- Can Quebec unilaterally secede under Canada’s Constitution?
- Does international law give the province the right to secede?
- If international and domestic law conflict, which takes precedence?
- அ) கனேடிய யாப்பின் கீழ் கியூபெக் தன்னிச்சையாக பிரிந்து செல்ல முடியுமா?
ஆ) அனைத்துலக சட்டம் கியூபெக் மாகாணத்துக்கு பிரிந்து செல்லும் உரிமையை வழங்குகிறதா?
இ) அனைத்துலக சட்டமும் உள்ளுர் சட்டமும் முரண்பட்டால் இரண்டில் எந்தச் சட்டத்திற்கு முன்னுரிமை?கியூபெக் மக்கள் பிரிந்து போவதற்கு வழிவகுக்கும் நேரடித் தேர்தலில் பிரிவினைவாதிகள் தோல்வியுற்றாலும் அவர்கள் மீண்டும் மீண்டும் அப்படியான தேர்தல்களை வைக்கப்போவதாக பயமுறுத்திக் கொண்டிருந்தார்கள். இந்தத் தலையிடிக்கு முடிவு காண நினைத்த பிரதமர் யேன் கிரச்சியன் (Jene Chretien) அதற்கு ஒரு முடிவு கட்ட நினைத்தார். உச்ச நீதிமன்றத்தை அணுகி சில கேள்விகளுக்கு தீர்ப்பு வழங்குமாறு கோரினார். றூடே போல இவரும் ஒரு பிரஞ்சு கனேடியர் என்பது குறிப்பிடத்தக்கது. உச்ச நீதிமன்றத்தில் கனேடிய அரசு முன்வைத்த கேள்விகள் பின்வருமாறு.அ) கனேடிய யாப்பின் கீழ் கியூபெக் தன்னிச்சையாக பிரிந்து செல்ல முடியுமா?
ஆ) அனைத்துலக சட்டம் கியூபெக் மாகாணத்துக்கு பிரிந்து செல்லும் உரிமையை வழங்குகிறதா?
இ) அனைத்துலக சட்டமும் உள்ளுர் சட்டமும் முரண்பட்டால் இரண்டில் எந்தச் சட்டத்திற்கு முன்னுரிமை?இந்த மூன்று கேள்விகளுக்கும் உச்ச நீதிமன்றம் பின்வருமாறு தீர்ப்பு அளித்தது.கியூபெக் மக்கள் ‘மக்கள்’ என்ற சொல்லுக்குரிய வரைவிலக்கணத்துக்குரிய அநேக குணாம்சங்களை நிச்சயமாகப் பெற்றிருக்கிறது. ஆனால் அவர்கள் ஒடுக்கப்பட்ட மக்கள் அல்லது கொலனித்துவ மக்கள் என்ற அளவு நிலைக்குரிய (thresshhold) வரைவிலக்கணத்தை நிறைவு செய்யவில்லை. எனவே அவர்களுக்கு தன்னாட்சி உரிமைக்கு (சiபாவ ழக ளநடக னநவநசஅiயெவழைn) உரித்துடையவர்கள் அல்ல. ஆனால் அவர்கள் ஒரு நேரடி வாக்கெடுப்பில் பிரிவினைக்கு ஆதரவாக தெளிவாகக் கேட்கப்பட்ட கேள்விக்கு ‘ஆம்’ என்ற தெளிவான பெரும்பான்மை வாக்களித்தால் கனடாவுக்கும் கியூபெக்கும் இடையில் பேச்சு வார்த்தை ஆரம்பிக்கப்பட வேண்டும். அதில் ஏனைய மாகாண அரசுகள், மைய அரசு மற்றும் கியூபெக் உட்பட எல்லா மக்களதும் குறிப்பாக சிறுபான்மை மக்களது நலங்கள் கருத்துக்கு எடுத்துக் கொள்ளப்பட வேண்டும்.மூன்றாவது கேள்விக்குப் பதில் கொடுக்க வேண்டிய அவசியம் இல்லை என்று உச்ச நீதிமன்றம் சொல்லியது.உச்ச நீதிமன்றத் தீர்ப்பை இணைப்பாட்சியை ஆதரிப்போர் பிரிவினையை ஆதரிப்போர் என இரு சாராரும் வரவேற்று தங்களுக்கு கிடைத்த வெற்றி என்று கொண்டாடியாதுதான் வேடிக்கை.கியூபெக் நினைத்தவுடன் பிரிய முடியாது என்பதால் இணைப்பாட்சியை ஆதரிப்போர் தங்களுக்கு வெற்றி என்றார்கள். பிரிந்து போகலாம் என்று உச்ச நீதிமன்றமே சொல்லிவிட்டது என பிரிவினையாளர்கள் தங்களுக்கு வெற்றி என்றார்கள்.இதற்குக் காரணம் தெளிவான கேள்வி என்றால் எத்தகையது என்றோ தெளிவான பெரும்பான்மை என்றால் என்ன விழுக்காடு என்று உச்ச நீதிமன்றம் தெளிவு படுத்தாது விட்டு விட்டது.
1995ஆம் ஆண்டு நடந்த நேர வாக்கெடுப்பில் 1.6 விழுக்காடு வித்தியாசத்தில்தான் பிரிவினைவாதிகள் தோற்றார்கள் என்பது குறிப்பிடத்தக்கது.
இந்த உச்ச நீதிமன்றத்தின் அடிப்படையில் தமிழ் மக்களுக்கு புற தன்னாட்சி உரிமை (external self-determination) இருக்கிறதா?. நிச்சயமாக இருக்கிறது. தமிழ் மக்களுக்கு என்று ஒரு வரையறை செய்யப்பட்ட பிரதேசம், தனித்துவமான வரலாறு, மொழி, பண்பாடு இருக்கிறது. மேலும் அவர்கள் சிங்கள அரசினால் ஒடுக்கப்படுகிறார்கள் என்பதற்கம் வலுவான சான்றுகள் இருக்கின்றன.
கியூபெக் மக்களுக்கு புற தன்னாட்சி உரிமை இல்லாத இடத்தும் பெரும்பான்மையினர் விரும்பினால் பிரிந்து போகும் உரிமை இருக்கிறது என உச்ச நீதிமன்றம் சொல்லி இருக்கிறது. எனவே தமிழ் மக்களும் ஒரு நேரடி வாக்கெடுப்பு மூலம் பிரிந்து போகலாம். அல்லது யுத்த களத்தில் வெற்றி பெற்று அந்த தன்னாட்சி உரிமையை நிலைநாட்டலாம்.
1995ஆம் ஆண்டுக்குப் பிறகு கியூபெக் பிரிவினைவாதிகள் இன்னொரு நேரடி வாக்கெடுப்பை நடத்த முன்வரவில்லை. நிச்சயம் வெல்ல முடியும் என்ற நம்பிக்கை அவர்களுக்கு இல்லாமல் இருப்பதே காரணமாகும். கடந்த 35 ஆண்டுகளாக கனடாவின் பிரதமராக பதவி வகித்தவர்கள் கியூபெக் மாகாணத்தைச் சேர்ந்தவர்கள் என்பது நோக்கத்தக்கது.
கனடா நாட்டின் மொத்த நிலப் பரப்பளவு 9,984,670 சதுர.கி.மீட்டர் (அமெரிக்காவை விடச் சற்றுப் பெரியது) இதில் கியூபெக் மாகாணத்தின் மொத்தப் பரப்பளவு 1,542,056 சதுர.கி. மீட்டர். கனடாவின் மக்கள் தொகை 30,007,094 (2001). கியூபெக் மாகாண மக்கள் தொகை 7,291,498. இதில் 85 விழுக்காடு பிரஞ்சு கனேடியர்கள். .
மேலும் கியூபெக் பிரிந்து போகத் தீர்மானித்தால் அந்த முடிவு தங்களைக் கட்டுப்படுத்தாது என்று அந்த மாகாணத்தில் வாழும் பூர்வீக குடிமக்கள் அறிவித்திருக்கிறார்கள்.
இருந்தும் ஒரு சுதந்திர கியூபெக் அரசுக்கான இறைமைப் போராட்டம் நீறு பூத்த நெருப்பாகவே இருந்து வருகிறது.
தமிழ் மக்கள் அனுபவித்த அனர்த்தங்கள், அவலங்கள், மொழி, கல்வி, வேலைவாய்ப்பு பாகுபாடு இவற்றில் 10 விழுக்காடு தன்னும் கியூபெக் மக்கள் அனுபவித்திருந்தால் ஒரு சுதந்திர இறைமையுள்ள கியூபெக் அரசு எப்போதோ உருவாகியிருக்கும்.
Supreme Court In Canada Declares That Quebec Has No Right To Secede
BY KATY LEROUGETEL
TORONTO – The nine judges of Canada’s Federal Supreme Court handed down a unanimous ruling August 20 declaring Quebec has no right to secede from Canada, either under Canadian or international law.
They opined that “the Quebec population certainly shares many of the characteristics of a people” but “does not meet the threshold of a colonial people or an oppressed people” and so it has no right to self-determination. The ruling states that if there were “a clear majority vote in Quebec on a clear question in favor of secession,” negotiations between Quebec and Canada would be required “to address the interests of the other provinces, the federal government and Quebec, and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of minorities.”
A 1995 referendum calling for sovereignty for Quebec failed by a 1.6 percent margin, giving the Canadian rulers quite a scare. The big majority of Quebecois, who face oppression on the basis of their language, French, voted in favor of sovereignty.
Following the Supreme Court ruling, Canadian prime minister Jean Chrétien said the federal government would not recognize a simple majority of 50 percent plus one, and insisted that the word secession or separation be used in any “clear” referendum on the question. Stéphane Dion, federal intergovernmental affairs minister, spelled out that Ottawa would continue to rule Quebec unless all the Supreme Court conditions were met, regardless of the expressed desires of the Quebecois. He warned that if secession were posed, Quebec’s present borders would not be considered unchangeable.
Refusing to recognize the legitimacy of the Supreme Court on this matter, the Quebec government and Quebec’s ruling party, the pro-sovereignty Parti Quebecois, had boycotted the original court hearings. Nevertheless, PQ officials hailed the court ruling. Provincial premier Lucien Bouchard said, “The next time, men and women in Quebec will be able to vote Yes with the certainty that negotiations will take place and that everything will be put into place for an orderly transition toward sovereignty in respecting the rights of all citizens.”
Jean Charest, leader of the Quebec Liberal Party, insisted that the key issues in Quebec are jobs and the economy, since Quebecois are not interested in another sovereignty “neverendum.” Both French- and English-language press presented the ruling as a signal that Ottawa was seeking diplomacy rather than confrontation. The French-language Montreal daily La Presse described it as “a Solomon’s judgment.”
“Plan B backfires” announced the Toronto Star. Plan B was the supposed hard-line denial of Quebec rights to be pursued by the ruling federal Liberals after the near-win by sovereignist forces in the October 1995.
Guy Bouthillier, the Montreal president of the nationalist association Société St-Jean Baptiste, said the judgment “delivered the goods to the feds, while giving the appearance of being balanced.” Referring to the Canadian army’s occupation of Quebec in October 1970, Bouthillier declared the ruling would not stop the Quebecois’ march toward their political destiny. “It didn’t work with the army in 1970; it won’t work now.”
Quebec Federation of Labor president Clément Godbout said, “At bottom, this whole question is not of a legal or judicial nature, but of a political nature.” Teachers’ Federation President Lorraine Pagé criticized the court for acting in bad faith.
On the courthouse steps in Ottawa on the day of the judgment, a few individuals brandished signs declaring their views, both federalist and sovereignist. One hand-lettered placard read “9 wigs against 7 million tuques,” referring to the 7 million people who live in Quebec.
Katy LeRougetel is a member of United Steelworkers of America in Toronto.
அன்புள்ள சுதர்மா அறிவது,
உங்களுடைய கட்டுரை படித்தேன். நன்று.
,நீங்கள் கனடாவில் இருப்பதால், பாலா அண்ணை கனடா அரசியலமைப்பு தொடர்பாக தெரிவித்த ,சில விடயங்களின் அடிப்படையில் கனடிய அரசியலமைப்பு, குறிப்பாக கியூபெக் பிரச்சினையை மையப்படுத்தியுள்ள விடயங்களை குறிப்பிட்டு, அது INDIA உதவுமா என்பதையிட்டு ஒரு சிறு ஆய்வை அடுத்த வாரத்துக்கு அனுப்புவீர்களா? இது புலிகள் குறிப்பிடும் வரையறைக்குள் உள்ளதா என்பதையும், ஸ்ரீ லங்கா அரசு இதனை ஏற்றுக்கொள்ளுமா என்பதனையும் அதில் பரிசீலனை செய்யுங்கள். இப்போதே சொல்லிவைத்தால் உங்களுக்குத் ,தகவல்களைத் திரட்ட உதவியாக இருக்கும் என்பதால்தான் இன்றே இந்த கடிதத்தை ,அனுப்புகின்றேன். நீங்கள் வழமைபோல வியாழன் இரவு அனுப்பினால் போதும்.
புதிய வானொலி வேலைகள் எப்படிப் போகின்றன?
Benchmark Quebec ruling expected to set worldwide precedent [Supreme Court of Canada]
Source: Canadian Press Newswire, Aug 19’98.
The Supreme Court of Canada is set to establish a worldwide legal precedent today when it hands down a benchmark ruling on whether Quebec can separate without the consent of the federal government.
It is believed to be the first time that a country’s superior court has ever ruled before the fact on whether a territory can unilaterally declare independence.
“We don’t know of any other examples taken in advance,” a Justice Department official said Thursday at a background briefing on the case.
Financial investors, politicians, pundits and legal experts were nervously awaiting the historic decision described as the most important to ever come from the high court.
The federal government, burned by a near loss in the 1995 sovereignty referendum in Quebec, asked the Supreme Court two years ago to give a legal opinion setting out ground rules for secession.
The repercussions of the decision will likely be felt across the land, reviving the charged debate over Quebec’s right to independence.
Depending on what the court decides, the decision could also provide political ammunition for Quebec Premier Lucien Bouchard, who has promised another referendum on sovereignty if he wins the next provincial election, expected this fall or next spring.
His government, which boycotted the court case, asserts that it’s up to Quebecers to determine their own future and separation is a political matter that can’t be decided by the federalist Supreme Court.
It’s an accusation that is very much on the minds of the court’s nine judges, including the three Quebecers. Pundits predict they’ll hand down a nuanced ruling that will include something for everybody.
“The judges know it’s a political trap and they won’t want to give too much to one side or the other,” predicted Guy Lachapelle, a professor at Concordia University in Montreal.
Ottawa asked the court to rule on three deceptively simple questions: Can Quebec legally declare unilateral independence under domestic law, can it be done under international law, and if there is a conflict, which law rules?
The court could hand down a far-reaching decision full of political ramifications or ask for a new hearing or new questions. It’s possible the ruling will not be unanimous.
Federal lawyers argued, during four days of hearings last February, that Quebec has no right under domestic or international law to unilaterally secede. They said separation can only be achieved under a constitutional amendment that would require negotiations with Ottawa and the provinces.
Since the Quebec government refused to participate, the court-appointed Quebec City lawyer Andre Joli-Coeur to argue the sovereigntist side.
Joli-Coeur argued that Quebec’s future is purely a political matter and the court should not intervene, particularly in hypothetical situations.
But he also asserted that, if the court does rule, it should recognize that sovereignty is a matter of international concern that overrides the Canadian Constitution.
He maintained that under international law an independent Quebec will be recognized by the world community as long as it can assert “effective control” over its territory and people. That means that the law simply recognizes political reality.
The court also heard from more than one dozen intervenors, including aboriginals, who raised the spectre of carving up Quebec in the event of separation.
Lawyers for several aboriginal groups, including the James Bay Cree, say they would want a seat at the table in any negotiations on secession.
They also argued that native communities would have the right to break away from Quebec and remain in Canada, an issue that seemed to attract the court’s judges, despite Ottawa’s appeal that the court stick with the three basic questions.
The reference, which means the court is handing down a legal opinion, is the centrepiece of what has been dubbed Plan B – Ottawa’s hard-line approach to Quebec separation.
The landmark court case is part of a wider strategy by the Liberal government to persuade Quebecers that independence could not be won by a simple majority vote in a provincial referendum.
Ottawa argues that virtually every new country to win admittance to the United Nations since 1945 has done so with only with the consent of its parent state. The main exceptions have been colonies breaking away from their oppressors.
University of Toronto political scientist Stephen Clarkson said the judges won’t be able to resist handing down a far-reaching judgment.
“If you were given absolute power over the history of Canada, would you walk away from it?” he asked. “It’s too good a chance to reject.”
Despite predictions that the judgment could be ammunition for the Quebec government, Prime Minister Jean Chretien said he doesn’t think it will unleash nationalist sentiments in Quebec.
“The people will have no objections to know the truth,” he said Thursday in Trois Rivieres.
The separatist movement in Quebec marginally lost a referendum in Nov 1995. Quebec has an 80% majority of French-speaking citizens whereas the rest of Canada is predominantly English-speaking. The province’s population of 7 million makes up for about 25% of Canada’s 29 million citizens. The government’s goal is to preserve integration by continuous membership in the Commonwealth, La Francophonie, NATO, GATT, and NAFTA as well as keeping the Canadian Dollar as a currency.
History and News
- 30 Oct 1995: The Quebec referendum on independence failed by 1% on a huge 94% turnout; it won 60% of the French-speakers’ vote.
- 1994: During Quebec’s elections, the separatist party PQ (Parti Québéquois) wins a majority in the province Quebec.
- 1993: The Bloc Québéquois of Lucien Bouchard succeeds with a second position in federal elections.
- 1982: New Federal Constitution adopted against Quebec’s wish to acknowledge its distinctiveness.
1980: A “sovereignty-association” of separatist René Lévesque was rejected by 60% in referendum
The Canadian Constitution
Constitutional law is always a fascinating enterprise. Over the years, observers have noted that they work best when the courts interpret them in a manner at odds with the original intent. It does seem that the The US Constitution originally emphasized states’ rights, but the courts have shaped an over-riding federal jurisdiction; similarly, Canada was intended to be a strong federal state, but crucial early cases acknowledged greater provincial powers. In Australia, it is said, the courts did what the Constitution intended and the result was constitutional crisis.
The late Chief Justice of Canada, Bora Laskin, once observed — perhaps with this phenomenon in mind — that all of the major Canadian constitutional decisions could just have easily gone the other way. Most of these decisions were made by the Judicial Committee of the Privy Council, a committee of law lords sitting in London, England. This was the ultimate court of appeal for Canada until its role vis à vis this country was abolished in 1949.
As it stands, our constitution is something of a hodgepodge of British legislation reflecting the growth of Canada from the original 4 colonies to 10 provinces and two territories, as well as changing social policy in matters such as unemployment insurance and emerging technologies such as radio and aviation.
கனடாவின் அரசியல் யாப்பு ஆரம்பித்தில் தனித்தனியாக இயங்கிய 4 கொலனி நாடுகளுக்கு பிரித்தானிய நாடாளுமன்றத்தால் இயற்றப்பட்ட சட்டங்களாக இருந்தன. இது இன்று பத்து மாகாணங்கள் இரண்டு பிரதேசங்களுக்குரிய யாப்பாக வளர்ச்சியடைந்துள்ளது.
எந்ததெந்தச் சட்டங்கள் கனேடிய யாப்பில் உள்ளடக்கப்பட்டிருக்கிறது என்ற விபரத்தை 1982ஆம் ஆண்டு இயற்றப்பட்ட யாப்பின் அட்டவணை ஒன்றில் சொல்லப்பட்டுள்ளது.
இந்த 1982 யாப்பே பிரித்தானிய நாடாளுமன்றம் கனடாவிற்காக இயற்றப்பட்ட கடைசி அரசியல் யாப்பாகும். அதன் பின் அரசியல் யாப்புக்கு கொண்டு வரப்பட்ட திருத்தங்கள் யாவும் கனேடிய நாடாளுமன்றத்தினாலேயே நிறைவேற்றப்பட்டது.
Many of these constitutent elements of our Constitution are set out in the list of links below, but that list is not complete. The authoritative list of what enactments now form part of the Constitution is set out in one of the schedules to the 1982 Act. Where specific matters are not dealt with, we can fall back on generous phrasing such as “peace, order and good government” or make reference to the Constitution of Great Britain which is, unhelpfully, unwritten.
The Constitution Act, 1982 was the last constitutional enactment for Canada to be made by the Parliament of the United Kingdom. It thus has the political importance of patriating the Canadian constitution; all future amendment must be done within Canada and according to amending formulas set out in Part V below. Domesticating political tensions in this country, however, has not tamed them and we continue to wrangle over constitutional arrangements which have, if anything, proved eminently workable.
On the legal front, the 1982 Act broke new ground. For the first time, the Constitution includes a Charter of Rights and Freedoms. This has fundamentally changed the legal relationship between the people and the state as well as the relationship between the courts and legislative institutions. Aboriginal and treaty rights, previously subject to a variety of legislative infringements, were given constitutional recognition which has been held to put the government to the test of justifying any future infringement. These and other issues are still to be worked out and, as legal issues, are being brought before the courts to the point that our judicial system is becoming clogged with them.
சட்ட யாக்கத்தைப் பொறுத்தளவில் 1982 அரசியல் யாப்பு கனேடிய நாட்டின் வரலாற்றில் ஒரு மைல் கல்லாகும். யாப்பின் ஒரு கூறாக உரிமைகள் மற்றும் சுதந்திரங்கள் பட்டயம் (ஊhயசவநச ழக சுiபாவள யனெ குசநநனழஅள) சேர்க்கப்பட்டது. இந்தப் பட்டயம் குடிமக்களது அடிப்படை பேச்சுச் சுதந்திரம், ஒன்றுகூடல் சுதந்திரம் போன்றவற்றை உறுதிப்படுத்துகின்றன. மேலம் கனேடிய பூர்வீக குடிமக்களுக்கும் கனடாவிற்கும் இடையில் காலத்துக்குக் காலம் எழுதப்பட்ட உடன்படிக்கைகளுக்கு அரசியல் யாப்பு அங்கீகாரம் வழங்கப்பட்டுள்ளது.
In retrospect, the Constitution Act, 1982 did not bell the cat of constitutional reform at all: rather it seems to have put the cat among the pigeons.
References to Aboriginal Rights in the Constitution Act, 1982.
Section 25 of the Charter of Rights:
- The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.
RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA
- (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit, and Metis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
35.1 The government of Canada and the provincial governments are committed to the principal that, before any amendment is made to Class 24 of section 91 of the “Constitution Act, 1867”, to section 25 of this Act or to this Part,
(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and
(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.
Constitution Battle Haunts Canada 20 Years Later
By Patrick White
QUEBEC CITY (Reuters) – What a difference a constitution can make. Twenty years after Canada replaced its original British-based Constitution with a home-grown one, it has better defined its identity thanks to the document’s Charter of Rights but the thorny issue of Quebec’s status within Canada is yet unresolved.
On April 17, 1982, then Prime Minister Pierre Trudeau signed the new Constitution in Ottawa alongside Queen Elizabeth II, giving the country a fresh new start.
இந்தப் புதிய யாப்பில் 1982 ஏப்பிரல் 17 ஆம் நாள் ஒட்டாவாவில் அன்றைய பிரதமர் றூடே (Prime MinisterPierre Trudeau) மற்றும் பிரித்தானிய அரசியார் இரண்டாவது எலிசபெத் (Queen Elizabeth 11) இந்தப் புதிய யாப்பு 1867ல் பிரித்தானிய நாடாளுமன்றத்தால் இயற்றப்பட்ட யாப்பின் இடத்தைப் பிடித்துக் (replacement)
ஆனால் இந்தப் புதிய யாப்பு பிரஞ்சு மொழி பேசும் கியூபெக் மக்களது ஆதரவைப் பெறத் தவறிவிட்டது. அப்போது கியூபெக் மாகாணத்தில் முதலமைச்சராக இருந்த றேனே லெவஸ்க்(Quebec Premier Rene Levesque ) பிரதமர் றூடேயும் ஏனைய மாகாண முதல்வர்களும் சதிசெய்து தன்னை ஓரங்கட்டிவிட்டார்கள் என்று குற்றம் சாட்டினார்.
லெவஸ்க் அரசியல் யாப்பு அதிகாரங்களை மையப்பப்படுத்துகிறது என்று சொன்னார். ஒட்டாவாவிற்கும் (மைய அரசு) மாகாண அரசுகளுக்கும் இடையில் வரிவிதிப்பு குடிவரவு பற்றிய அதிகாரங்கள் அகலப்படுத்தப்பட வேண்டும் என்று கோரினார். புதிய யாப்பில் லெவஸ்க் கையெழுத்திட மறுத்து விட்டார். இந்தச் சிக்கல் 1995ஆம் ஆண்டுவரை நீடித்தது.
The 1982 Constitution, replacing the 1867 act of the British Parliament that created Canada, included a new and modern Charter of Rights, a statement of rights for the country’s aboriginal peoples and language minorities, a complicated procedure for changing the Constitution and a selection process for Supreme Court judges.
The Constitution was, however, patriated from London without the support of French-speaking Quebec. At the time, Quebec Premier Rene Levesque said he was sidelined by Trudeau and the other provincial premiers and accused them of conspiring against Quebec.
Levesque, who opposed Trudeau’s more centralized approach, wanted enshrined in the document a broader sharing of jurisdictions between Ottawa and the provinces on issues such as taxation and immigration.
He refused to sign on to the Constitution, as have all subsequent Quebec premiers, and the issue dominated the country’s political agenda until 1995, when Quebec separatists narrowly lost a referendum on secession from Canada.
Twenty years on, a nagging sense of unfinished business about the Constitution still haunts the country.
“We are continuing to live and ignoring the country’s big problem: its Constitution and the status of Quebec,” said Desmond Morton, political scientist at Montreal’s McGill University.
“Prime Minister Trudeau has left everything in a mess,” he added.
Morton said that the Charter of rights also led to another major problem: too much power for the judiciary.
“Democracy is now settled by judges,” he said.
Morton said there no appetite today to solve the Quebec question because of public apathy and the country’s relative economic prosperity.
“There is not much enthusiasm for this debate, except for experts,” he said in an interview.
Morton and others have stressed that the Charter of Rights included in the Constitution has helped to better define a national identity that is often swamped by Americanization.
“It made us more proud as Canadians and reinforced the right of citizens against the government,” Canadian Intergovernmental Affairs Minister Stephane Dion told Reuters.
“In terms of rights, there has been very nice progress. It has been very useful.”
Dion, a supporter of the federal government’s tough line on Quebec separation since the 1995 referendum, said that separatist worries about the country’s centralization and the province’s cultural distinctiveness have not materialized.
இருபது ஆண்டுகள் கழித்தும் புதிய அரசியல் யாப்பு பூரணமாக ஏற்றுக் கொள்ளப்படவில்லை என்ற ஆதங்கம் பேய் பிடித்தமாதிரி நாட்டை ஆட்டுகிறது.
கியூபெக் அரசியல் வாதிகளில் ஒரு சாரார் றூடோ (இவர் ஒரு பிரஞ்சு கனேடியர்) தங்களை வஞ்சித்து விட்டார், அதிகாரங்கள் மையப்படுத்தப்பட்டு விட்டன என்று பிரிவினைவாதிகளின் குற்றம் சாட்டினாலும் அவர்களது பயம் பொருளற்றது என்று இன்னொரு சாரார் அடித்துச் சொல்கிறார்கள்.
கியூபெக் மக்களது ஒரு முக்கிய கோரிக்கை கனேடிய அரசு கியூபெக் மாகாணத்தின் சமூக தனித்தன்மையை (provinc’s distinct society) ஒப்புக் கொள்ள வேண்டும் என்பதாகும்.
கியூபெக் மாகாணத்தில் பிரிவினை கோரும் கட்சியான பார்ட்டி கியூபெக்குவாவே 1994ஆம் ஆண்டு தொடக்கம் பதவியில் இருந்து வருகிறது குறிப்பிடத்தக்கது.
கியூபெக் மக்களது தலையாய பயம் என்னவென்றால் வட அமெரிக்காவில் வாழும் சுமார் 30 கோடி ஆங்கிலேயர்கள் முக்கால் கோடி பிரஞ்சு மொழி பேசும் மக்களது மொழி, பண்பாட்டை விழுங்கி விடுவார்களோ என்ற பயம் இருக்கிறது. பிரிவினைக் கோரிக்கைக்கு இந்த உளவியல் காரணம் முக்கியமாகும்.
கியூபெக் மாகாணத்தில் பிரஞ்சு மொழிக்கே அரச கருமங்களில் முதலிடம் கொடுக்கப்படுகிறது. மைய அரசத் திணைக்களங்களில் மட்டும் ஆங்கிலம் பிரஞ்சு இரண்டு மொழிக்கும் சமவுரிமை கொடுக்கப்படுகிறது.
கியூபெக் மாகாணத்தில் அங்காடிகளின் பெயர்ப் பலகைகள் பிரஞ்சு மொழியில் பெரிதாகவும் ஆங்கிலத்தில் சின்னதாகவும் எழுதவேண்டும். அங்காடிகளில் விற்பனையாகும் பொருட்களும் இதேமாதிரி எழுதப்பட வேண்டும். அதற்கான சட்டம் இருக்கிறது. சட்டத்தை அமுல்படுத்த தனிக் காவல்துறை இருக்கிறது.
கியூபெக் மாகாணத்துக்கு வெளியே மைய அரச திணைக்களங்களில் இரண்டு மொழிக்கும் சமவுரிமை உண்டு. மாகாணங்களில் பிரஞ்சுமொழி பேசுவோர் கணிசமாக இருந்தால் (15விழுக்காடு) பிரஞ்சுமொழியில் கருமமாற்ற வசதிசெய்து கொடுக்கப்படுகிறது.
“Their big fears did not come true. They are living in the past and are constantly looking for a fight with the federal government. They like to dramatize things,” he said.
Dion, however, said that he was saddened that Quebec was still not a signatory to the Constitution and said the federal government was willing to recognize the province’s distinct society within the Constitution.
“It is not an ideal situation to see that Quebec has not accepted the Constitution,” he acknowledged, but noted the issue was, at present, “not a priority for the government and for Canadians”.
Dion said that a series of events were planned for Wednesday in Ottawa to mark the 20th anniversary of the Charter and the patriation, including a ceremony involving Prime Minister Jean Chretien.
However, Quebec’s separatist government, in power since 1994, was quicker to celebrate the event — sort of.
It has published full-page advertisements in the province’s daily newspapers over the past week, blasting the federal government’s 1982 “coup de force”, which it said “weakened the powers and the rights of North America’s sole French-speaking parliament”.
A senior provincial cabinet minister said that Canada should be ashamed of not being willing to accommodate Quebec.
“Could you imagine what would happen in the United States if the Constitution was changed without the consent of the states of New York, Texas and California?” provincial Intergovernmental Affairs Minister Jean-Pierre Charbonneau asked.
Charbonneau said the Charter of Rights hurt the language rights of Quebecers, pointing to a 1988 Supreme Court decision striking down provisions of the province’s language law that mandated the use of French in commercial signs.
“We have no reasons to celebrate this anniversary,” Charbonneau said
Centennial of Canadian Confederation
The year 1967 marked the 100th anniversary of the British North America Act, which had been proclaimed on July 1, 1867, and established the basis for the modern state of Canada. A giant birthday party on Parliament Hill in Ottawa was attended by Queen Elizabeth II. A highlight of the year was the Universal and International Exhibition, known as Expo ’67, held in Montreal. Also to mark the centennial, Winnipeg, Man., was host to the fifth Pan-American Games, and the Order of Canada was instituted to reward Canadians for outstanding merit and service.
In 1982 the British North America Act was replaced by a new constitution for the government of Canada. Queen Elizabeth visited Parliament Hill to proclaim the document. This completed the transfer of constitutional powers from Great Britain to Canada.
Beginning in the 1960s Quebec was the center of militant agitation to separate it from Canada and establish a French-speaking nation. In 1969 French and English were both declared the official languages of Canada. In 1970 terrorist acts by alleged separatists were climaxed by the kidnapping and murder of Quebec’s minister of labor and immigration, Pierre Laporte. The federal government sent in troops and temporarily suspended civil liberties. In 1974 French became the official language of the province.
A party pledged to Quebec separatism won the 1976 provincial election and passed several measures to strengthen the movement. Under a controversial law adopted in 1977, education in English-language schools was greatly restricted. The charter also changed English place-names and imposed French as the language of business, court judgments, laws, government regulations, and public institutions.
Although the separatist party retained power, a referendum to make the province an independent country was rejected by the Quebec voters in 1980. The Quebec government opposed the 1982 constitution, which included a provision for freedom of language in education, and unsuccessfully sought a veto over constitutional change. In 1984 the Supreme Court ruled against Quebec’s schooling restrictions.
In 1987 the Meech Lake constitutional accord recognized Quebec as a “distinct society” and transferred extensive new powers to all the provinces. Quebec promised that it would accept the 1982 constitution if the accord was approved by all the rest of the provinces. The House of Commons ratified the Meech Lake accord on June 22, 1988, but the accord died on June 23, 1990, after Newfoundland and Manitoba withheld their support. A new set of constitutional proposals hammered out by a parliamentary committee was agreed upon in 1992. They called for decentralization of federal powers, an elected Senate, and special recognition of Quebec as a distinct society. In a referendum held in October 1992, Canadians decisively turned down the constitutional changes. Quebec voters narrowly rejected secession from
A constitution provides the essential framework for orderly government and for relations between people and their government.
Canada’s Constitution is not a single document as in the United States. It is made up of acts of the British and Canadian Parliaments, as well as legislation, judicial decisions and agreements between the federal and provincial governments.
It also includes unwritten elements such as British constitutional conventions, established custom, tradition, and precedent. Responsible government, for example, in which the Cabinet is collectively responsible to the elected House of Commons and must resign if it loses a vote of confidence, is a fundamental, but unwritten, element of Canadian parliamentary democracy at the federal and provincial levels.
The Constitution’s basic written foundations are the Constitution Act, 1867, which created a federation of four provinces — Ontario, Quebec, Nova Scotia and New Brunswick — under the British Crown, and the Constitution Act, 1982, which transferred formal control over the Constitution from Britain to Canada and entrenched a Canadian Charter of Rights and Freedoms and procedures for constitutional amendment.
The Constitution Act, 1867
The Constitution Act, 1867 (formerly known as the British North America Act) contains the fundamental distribution of powers between the federal and provincial governments.
The founders of Canada were determined to create a strong central government while, at the same time, assigning substantive powers to provincial legislatures that would enable them to maintain their identity, culture, and institutions. They gave the federal Parliament jurisdiction over defense and foreign policy, trade, transportation, communications and Indians and Indian lands. Parliament was also granted certain extraordinary powers, such as the broad authority “to make laws for the peace, order and good government of Canada,” the right to disallow provincial legislation, and to declare local undertakings to be for the general advantage and thus to fall under federal jurisdiction (for example, the regulation of sales of alcohol or firearms).
In a deliberate departure from the U.S. model, the Fathers of Confederation awarded to the federal Parliament the residual power, i.e., jurisdiction over all areas not specifically assigned to the provincial legislatures. (The 10th Amendment to the U.S. Constitution reserves to the states or to the people all powers not specifically enumerated.) The federal government was also provided with unlimited taxing powers while the provinces were restricted to direct taxes within the province.
The provincial legislatures were given authority over education, hospitals, property, civil rights, natural resources and other “local works and undertakings.” Jurisdiction over two areas, immigration, and agriculture, was divided between the two levels of government.
The basic distribution has been formally amended only four times since 1867: amendments in 1940, 1951 and 1964 gave the federal government responsibility for unemployment insurance, old age pensions, and supplementary benefits; and the Constitution Act, 1982 strengthened provincial control over natural resources and affirmed other protections, such as for Canada’s Aboriginal peoples and for regional development. The balance of power has shifted back and forth, however, through a combination of judicial decisions, circumstances and political compromise.
The Judicial Committee of the Privy Council of Great Britain was the court of final appeal for Canada until 1949 when full authority was transferred to the Supreme Court of Canada. It rendered some 120 decisions on the distribution of legislative powers and established the fundamental principle that the provinces and the federal government are sovereign in their areas of jurisdiction. In general, the Committee contributed to the decentralization of the Canadian federation through its broad interpretation of provincial powers, particularly over property and civil rights, and its relatively narrow reading of the principal federal powers. (In contrast, the U.S. judiciary played a significant role in centralizing power under the federal government through its broad interpretation of federal jurisdiction over interstate commerce.)
The Constitution Act, 1867 contains specific provisions designed to protect the distinctiveness of Quebec. It recognizes Quebec’s civil code as distinct from the English common law in effect in the other provinces, and provides for the use of English and French in Parliament and the Quebec legislature and courts, and for publicly-funded separate schools for Protestant and Catholic minorities in Quebec and Ontario (and later in Manitoba, Saskatchewan and Alberta).
After Confederation Canada gradually assumed more autonomy over its own affairs until its independent status (and that of the other self-governing dominions) was recognized in the Balfour Report of 1926. Beginning in 1927, discussions were held about patriating Canada’s Constitution — transferring amending authority from the British Parliament to Canada — but governments couldn’t agree on constitutional amending procedures. Consequently, when Canada officially ceased to be a British colony with passage of the Statute of Westminster in 1931, authority to amend the Constitution remained with the British Parliament. In 1949 the Canadian Parliament was given a limited amending power in areas that did not concern provincial jurisdiction. Despite many discussions and several formal conferences, agreement on a comprehensive set of amending procedures proved elusive for more than 30 years.
In November 1981, after intensive negotiations at a First Ministers’ conference, the federal government and all the provincial governments except the Parti Québécois government of Quebec, agreed on a package of constitutional amendments. The agreement did not alter the fundamental distribution of powers but included a comprehensive amending formula, a Canadian Charter of Rights and Freedoms, entrenchment of the principle of equalization payments to the poorer provinces, and a strengthening of the provinces’ control over natural resources.
Despite support for the agreement by a large majority of Quebec representatives in the federal Parliament, the Quebec National Assembly rejected it on the grounds that the Charter limited the Assembly’s legislative powers without its consent. The Quebec government objected to two clauses in the Charter: the provision for minority language education rights, which conflicted with restrictions on English schooling in the province’s French-language charter; and the mobility clause guaranteeing Canadians freedom to live and work anywhere in Canada, which could affect the province’s ability to set labour policies favouring the employment of Quebecers. The Quebec government also objected to the amending formula, which offered financial compensation to provinces that opted out of constitutional amendments only on educational and other cultural matters. The Constitution was patriated on April 17, 1982, without the consent of the Quebec legislature, but the Supreme Court of Canada subsequently ruled that the patriation process had respected Canada’s laws and conventions and that the Constitution, including the Constitution Act, 1982, was in force throughout Canada.
The Canadian Charter of Rights and Freedoms
Canada entrenched its charter of rights more than a century after the country was founded. (In contrast, the U.S. Bill of Rights was added as the first 10 amendments to the U.S. Constitution within two years of its ratification, in 1791.)
Canada’s Constitution Act, 1867 did not include a bill of rights because it was assumed that the unwritten conventions inherited from Britain provided effective protection for civil liberties. In 1960, Parliament passed a bill of rights, but it applied only to federal institutions and did not have constitutional weight.
The Canadian Charter of Rights and Freedoms guarantees some of the same rights, called “fundamental freedoms,” that are protected in the U.S. Bill of Rights: freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press; freedom of peaceful assembly; and freedom of association. It guarantees legal rights, such as the presumption of innocence; the right to life, liberty, and security of the person; and security against unreasonable search and seizure. The first section of the Charter states that its guarantees are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” a qualification not found in the U.S. Constitution.
The Charter guarantees democratic rights such as the right to vote; mobility rights, such as the right to take up residence in any province; and equal protection under the law for all Canadians (while specifically permitting affirmative action programs). It includes language provisions that are particularly Canadian: it establishes English and French as official languages and guarantees certain minority language education rights.
Inclusion of the Charter in the Constitution marked a departure from the principle of parliamentary supremacy and an expansion of the role of the courts as federal and provincial laws must now conform to the Charter as well as to the division of powers. However, the Charter includes a “notwithstanding” clause that permits Parliament or a provincial legislature to pass legislation which violates certain of these rights by inserting in the law a declaration that it shall operate “notwithstanding” a certain provision of the Charter, for up to five years. This clause has been invoked by the Quebec and Saskatchewan legislatures.
The Amending Formula
Under the amending formula adopted in 1982, some constitutional changes must have the consent of Parliament and at least two-thirds of the provincial legislatures representing at least 50 per cent of the population. Some amendments, including those that affect the office of the Queen or her representatives in Canada, the use of English and French at the national level or the amending formula itself, require the unanimous consent of Parliament and the 10 provincial legislative assemblies. The formula allows a provincial legislature to opt out of an amendment that takes away any of its powers, rights and privileges.
Developments Since 1982
The Constitution Act, 1982 recognized and affirmed the Aboriginal and treaty rights of Canada’s Aboriginal people, who were defined as including Indians, Inuit and Métis (those of mixed ancestry). In 1983, the Act was amended to include rights that exist or might be acquired through land claims agreements and to state explicitly that Aboriginal rights are guaranteed equally for both men and women.
There have been two major attempts since 1982 to satisfy the constitutional concerns of Quebec and others. The “Meech Lake Accord,” signed in 1987 by Prime Minister Brian Mulroney and all 10 provincial premiers, would have entrenched recognition of Quebec as a distinct society in the main body of the Constitution. It also would have restricted the use of the federal spending power by giving the provinces the right to opt out of any shared-cost programs with compensation in areas of provincial jurisdiction, clarified provincial power over immigration, entrenched the requirement that three of Canada’s nine Supreme Court judges be appointed from the Quebec civil bar and changed the amending formula to require unanimous consent for certain institutional changes. The legislative assemblies of Manitoba and Newfoundland failed to ratify the accord within the three-year deadline and it lapsed.
The package of constitutional reforms known as the “Charlottetown Accord” was negotiated in 1992. In addition to recognizing Quebec’s distinct society in the preamble of the Constitution and guaranteeing that province 25 per cent of the seats in the House of Commons, it would have addressed a broad range of other issues. These included redistribution of federal-provincial powers, Aboriginal self-government, Senate reform and increased representation for Ontario and British Columbia in the House of Commons. This agreement was defeated in a national referendum.
Following the narrow defeat of the sovereignty option in the October 1995 referendum in Quebec, Parliament passed a resolution recognizing Quebec’s distinct society as well as legislation effectively giving Quebec and four other regions of Canada (Ontario, the Atlantic provinces, British Columbia and the Prairie provinces) a veto over constitutional change. The federal government also announced it would withdraw from the administration of labour market training in favour of the provinces.
Unitary, as opposed to, federal states
Not all states have the same structure in the way that sovereignty is handled and vary on this significant fact. There are different ways to delegate authority within a state.
There are unitary, federal and confederal systems.
They all vary on the means by which they delegate authority.
In order to make a political system effective, authority is generally delegated to local governments on a functional or a territorial basis.
A functional delegation of authority:
Functional or non-territorial distribution of authority is an assignment of specialized roles to individuals or institutions on the basis of their expertise. EG: Specialized agencies or departments; interest groups; separation of powers in governmental duties.
Territorial Distribution of Power: Division of power/delegation of power between national and sub-national governments (local governments).
Creation (if there are no local units) or recognition (of already existing) local units which have geographically delineated authority over matters of local/regional significance.
Sometimes it may be quite difficult to establish clear boundaries determining where the national problems end and the local begin.
Decentralization does not mean break-up: the cases of Yugoslavia, Ethiopia, and the Soviet Union indicate fragmentation of an old state into new many new states. In both these cases, decentralization may both have led to fragmentation, and perhaps, if skillfully employed, could have also averted fragmentation.
Rather, the classic example is England today: its decentralization has led to an Irish and a Scottish Parliament, and may one day lead to a Welsh Parliament. Power is being selectively delegated to subnational regions.
Delegation from above:
Most nation states are unitary systems.
The national (central) government considers it imperative to delegate a portion of the centrally held powers to sub-national governments.
Such delegation may be substantial or marginal.
National government retains sovereignty.
நூற்றுக்கும் அதிகமான நாடுகள் ஒற்றையாட்சி அரசியல் அமைப்பைக் கொண்டிருக்கின்றன. கொள்கையளவில் மைய அரசால் பிரதேச அரசுக்கு வழங்கப்படும் அதிகாரம் எந்த நேரமும் இரத்துச் செய்யப்படலாம். அல்லது திருத்தப்படலாம். பல ஆபிரிக்க, மத்திய கிழக்கு நாடுகளின் அரசியல் அமைப்பு ஒற்றையாட்சியாகும். ஒற்றையாட்சியின் கீழ் அதிகாரம் பரவலாக்கப்படலாம். ஆனால் இறைமை பகிர்ந்தளிக்கப்பட மாட்டாது.
இணைப்பாட்சி அரசியல் அமைப்பில் ஒரு மைய அரசும் ஒன்றுக்கு மேற்பட்ட மாநில அரசுகளும் இருக்கும். இணைப்பாட்சி அரசியல் முக்கிய இலக்கு வேற்றுமையில் ஒற்றுமை காண்பது. பெரும்பாலும் அந்த வேற்றுமை மொழி, பண்பாடு போன்றவற்றை அடிப்படையாக இருக்கும்.
ஐக்கிய அமெரிக்கா, கனடா, ஜெர்மனி, இந்தியா, பாகிஸ்தான் போன்ற நாடுகள் இணைப்பாட்சி அரசியல் அமைப்பைக் கொண்டுள்ள நாடுகள்.
கூட்டு இணைப்பாட்சி அரசியல் அமைப்பில் பொதுவான குறிக்கோள்களுக்காக பல மாநில அரசுகள் ஒன்றுபட்டு ஒரு மைய அரசை உருவாக்குகின்றன. மாநில அரசுகள் தங்கள் இறைமையைத் தங்களோடு வைத்துக் கொள்கின்றன. குறிப்பிட்ட சில அதிகாரங்களை மட்டும் தாமாகவே முன்வந்து மைய அரசுக்குக் கையளிக்கின்றன. அதிகாரக் கையளிப்பு நாட்டுக்கு நாடு வித்தியாசப்படும். கூட்டு இணைப்பாட்சியின் கீழ் ஒரு மாநில அரசு விரும்பினால் பிரிந்து போகலாம். அல்லது உறுப்புரிமையைக் கத்தரித்துக் கொள்ளலாம். முன்னைய சோவியத் ஒன்றியம், முன்னைய யூகோசிலாவிய குடியரசு, இன்றைய ஐரோப்பிய ஒன்றியம் இத்தகைய அரசியல் அமைப்புக்கு நல்ல எடுத்துக்காட்டாகும்.
In principle, a delegation of authority from the central government to the sub-national governments is revocable and amendable.
A delegation from below:
Federal systems: recognition of both diversity and unity (unity through recognition of diversity).
Confederal systems: Affirmation of diversity and unity for a specific purpose.
Confederations: Confederal systems emerge in response to the realization of specific common goals of several states.
Nation-states maintain their sovereignty.
Specific powers are delegated to the central government.
These systems allow secession or withdrawal of the members of the union.
The extent of the delegation varies from system to system. However, the national government maintains control over the central agenda while matters of local importance are delegated to the sub-national units.
What are the main examples of unitary states?
Unitary states, of which there are over 100, tend to characterize developing states in the Andes, Western, Southern and Eastern Europe, most of Africa, the Middle East, Southeast and East Asia.
What is a good indicator of decentralization.
It depends on what powers are being delegated to the sub-national authority:
In the case of the case of the Parliaments in Northern Ireland and Scotland, these are experiments – these have no independent budgetary and no foreign affairs authority.
If you recall last week’s lecture, specifically Charles Tilly’s emphasis on the importance of taxation as a characteristic of a modern state, I think this is an important indicator of how decentralized a state is.
In unitary states, such as the Netherlands and Israel, the central government obtains 80% of the tax collection. The remaining 20% go to municipal authorities.
However, at the other extreme, federal states like Canada and the U.S., the tax collection is approximately evenly divided between the state/provincial and federal governments.
So, a central government of a centralized state will receive 80% of tax revenue, and a central government of a decentralized state should probably obtain no less than 60% of the national tax revenue.
Why does it matter how states are organized?
It impacts on how minorities are treated: how much autonomy/self-rule are they granted? Is the state attempting to assimilate them?
It impacts on economic development: is each region permitted its own authority to plan development, or does the center plan all economic growth? On the one hand, it may be more efficient to permit regions to develop because they are more familiar with their own circumstances. On the other hand, decentralization may lead to different growth rates between regions, that eventually leads to economic disparity and potential domestic instability as a consequence.
States (territorially) decentralize for five reasons:
(1). Effective administrative functioning of the government via the transfer of day-to-day functions to the sub-national governments.
(2). Mobilization of local initiative; participation of the local population towards the generation of a national agenda.
(3). Functioning of local units as channels for transmission of political will and information of the national government.
(4). Strong feelings of territorial identity.
(5). Ideological commitment to pluralism.
How is this system specified for the purposes of governance?
States specify their level of decentralization in their political constitutions. There are two means by which states have their systems of governance specified as to their levels of decentralization.
Some constitutions are based on written documents, such as the US Constitution, while others are based on conventions and precedents of practice, as with the unwritten British constitution.
In unitary states, the central government may delegate authority, but sovereignty ultimately lies with it. In effect, decentralized authority in states is revocable – it can be taken away. The Scottish Parliament, for example, is not necessarily permanent.
However, especially in am unwritten constitution, decentralization, once in effect, may in fact be irreversible: the central authority may be able to convince the sub-national region to surrender its delegated authority.
Unitary systems have been adopted by states with the full spectrum of regime types: democratic, authoritarian, imperial and totalitarian states.
There are four broad categories of territorial self-rule in a unitary state:
(1). Central appointment of officials: Agencies and officials are appointed by the central authority to run territorial subdivisions. EG: Nazi Germany and imperial states. It is because this system tends to be unrepresentative that it is usually transformed into the second type:
(2). Central appointment of officials and local acknowledgment: Agencies and officials are appointed by the central authority but the appointment is confirmed by the local authorities. In effect, although officials appear to be approved locally, local authorities have little actual choice. This was typical of the East Bloc states (the Soviet Union) and continues to be used in China (where People’s Congresses approve the central representatives). While this system may seem unrepresentative, it was meant to solve the problem of local corruption because an outside official would not be as vulnerable to local manipulation.
(3). Central appointment of officials with local approval: A combination of centrally appointed officials in charge of local government with locally-elected officials.
EG: This applies only at the commune level in France (following the 1958 Constitution set up by deGaulle). France has a number of sub-national levels of administration:
(1). Central Government;
(2). 95 Départements (headed by a prefect) – appoints key civil posts: tax collectors, teachers, postmasters.
(3). 280 Arrondissements (subprefects)
(4). 3000 Cantons
(5). 38,000 Communes
Many states, such as Haiti and Morocco have copied the French system for their internal administration.
However, since President Mitterand of France, the authority of the prefects have been reduced vis-à-vis the local authorities – this is a strong indicator of decentralization in France.
For examples of administrative structures of other states, look into the readings.
(4). Local self-rule: Some unitary states use self-rule for all local administration, typically through local elections.
EG: Pre-WW2 Japan used to have a system, similar to France, of centrally-appointed officials. Since American occupation, however, Japan has instituted locally-elected government as a replacement.
A major problem with local autonomy is that the regions may form alliances against the center. EG: In Belgium, inter-regional associations are permitted, but the constitution does not permit debate so that they do not challenge the central government. In Belgium, which is linguistically divided, the threat of regional association is a serious one.
Advantages and Disadvantages of Unitary Systems:
Unitary systems tend to work best when applied to states with homogenous communities, or in states, which seek to become homogenous.
Unitary systems are also appropriate for states seeking uniform national development, esp. versus local corruption or duplication in planning.
Conversely, unitary states may be inefficient or unrepresentative in states with multiple identity groups. However, granting local autonomy may equally undermine central authority and the long-term viability of the state.
Revocation of local autonomy
In theory, authority granted by a central authority in a unitary state is revocable – it can be taken away.
(1): But in reality, this may prove difficult as local authorities become accustomed to local representation.
EG: In the United Kingdom, the near permanence of representatives for Ireland, Scotland, and Wales, in the form of cabinet secretaries of state, is impossible to change at this point because of the long precedent for this form of administration.
(2): Many of the states whose constitutions specify themselves as unitary states, actually have territorially-defined autonomous political units.
EG: Mainland Communist China: it has a variety of provinces and autonomous regions that are specified. These typically relate to local ethnically-different regions.
There has been a recent trend towards decentralization in the developed and developing world:
2 factors in the developed world:
In the developed world, the move toward decentralization has been driven essentially by the need to increase economic efficiency in order to compete internationally. However, at the same time, there has been a tendency to centralize economic and political authority into regional organizations. In Europe, states have handed over significant aspects of their economic sovereignty to the European Union.
Also, there have been increasing calls for local autonomy, or self-rule has become more permissible. This applies to Northern Ireland and Scotland in England, Catalonia and the Basque Country in Spain, Corsica for France.
In contrast, though, there have also been national trends towards recentralization. In the US, the states are permitted to have authority over any area that is not specifically set aside for the federal government. The US federal government has been increasing its authority over the last 50 years by allocating funds to the states in exchange for their submission to various national standards, such as highway funds for controlling the speed limit on highways.
In the developing world, there has been a tendency toward recentralization. This is mainly driven by developmental imperatives – the need to ensure that social and economic plans are coordinated and have at their disposal a maximization of resources.
In the case of India, there has been a sharp increase in the rise of the influence of the central government over the states: Delhi governments frequently dismiss ineffective state governments and rule some states directly, as they did Kashmir and the Punjab for a time.
Again, there are also indicators of a move towards decebtralization, as in China, where local elections permit regional self-administration in many areas, although the provinces are still not formal decentralized to the extent that China is a federal system.
Federal Systems of the World: A Handbook of Federal, Confederal and Autonomy Arrangements
Daniel J. Elazar
Federalist responses to current democratic revolutions
The vast changes that have occurred in Eastern Europe and the USSR since the first edition of this handbook bring us face to face with the opening of a new era in contemporary history, one in which the people themselves have rejected totalitarian communism and are seeking to restore civil society through the introduction of more liberal political regimes. In that, they are following in the footsteps of a similar movement that took place in Latin America earlier in the 1980s against the authoritarian regimes that had taken power there. Those, in turn, were stimulated by the ending of the authoritarian regimes in the European countries of the Mediterranean region — Spain, Portugal, and Greece — in the later 1970s. Suddenly, democracy, which only a decade ago had seemed to be in retreat in the face of growing repression throughout the world, has emerged as the real wave of the future.
One of the critical problems faced in several of those countries is that of accommodating internal diversity, often ethnic in character, and fostering appropriate links with their neighbors. In both of these cases, the only solutions that seem to be feasible are federal solutions. This is certainly true in the case of the biggest of the polities involved, the former Union of Soviet Socialist Republics, most of whose former republics are linked confederally through the Commonwealth of Independent States (CIS). As soon as glasnost and perestroika began to take effect, the different non-Russian nationality groups raised their heads and set their sights on greater independence. Shortly thereafter, the Russians themselves began to assert their ‘Russianness’ and to seek greater expression of it.
At present, the USSR successor states hang in the balance between greater independence for their nationalities or restoration of repressive centralized government. The USSR’s nominal federalism which, despite the paper guarantees of its constitution, did not function in a federalistic way in practice, was incapable of responding satisfactorily to those demands so it was dissolved. Now those who believe that it is best or at least necessary to preserve its successor states, particularly Russia but also Ukraine and Georgia, under one general government are looking to federal solutions to solve their problems of balancing nationality demands with the desire or need for a common framework and are having difficulties in that.
But the CIS republics are not the only states involved. In Eastern Europe, totalitarian Communism imposed its own murderous straitjacket after each of the world wars. It finally collapsed under the weight of its own sins (one is tempted to say “internal contradictions”), opening the door to democracy and demonstrating the need for federal democracy at that. Czechoslovakia became nominally federal in 1968 — the only major result of the Prague Spring to survive. While on its way to becoming meaningfully federal, however, Slovak nationalists engineered that state’s peaceful secession, now much regretted by many Slovakians who perceive their loss while many Czechs are relieved at having shed a burden.
Yugoslavia, on the other hand, ruled by Leagues of Communists, although not a member of the Soviet bloc, erupted into civil war once the Soviet threat to its existence was eliminated. Two of its republics, Slovenia and Croatia, took the lead in seceding. Slovenia’s secession was successful. Croatia successfully established its independence but has lost approximately a third of its territory to Serbia which invaded it to “rescue” local Serbs. Macedonia subsequently seceeded, while Bosnia has been wracked by a three-way civil war between Bosnian Muslims, Serbs, and Croats, and seems destined for partition in some form. Serbia, Montenegro, and those parts of the other republics captured by the Serbian army maintain at least the form of Yugoslav federalism. Nevertheless, all of this demonstrates that “federalism” imposed by force and ruled from the top is neither true federalism nor is it destined to be successful. Federalism is too intimately associated with democratic republicanism for that.
The German situation, which has been so very different, is a case in point. Their reunion of west and east was achieved through first reconstituting the states of the eastern German Democratic Republic. They then joined the western German Federal Republic. Part of the maintenance of democracy in a reunified Germany undoubtedly will be tied to the continued linkage of Germany to the European Community, itself an evolving confederation that has restored the possibility of confederation as a viable form of federalism, most recently through the Maastricht treaty.
Within the European Community, Spain, Portugal, and Greece returned to democracy as a precondition to joining the EC. In 1978 Spain adopted the regime of the autonomies, a form of federal solution designed to solve its own internal nationality problem. Over fifteen years after the adoption of a democratic constitution for Spain and the introduction of the regime of the autonomies, it is generally agreed that the introduction of those federal principles and arrangements has had extraordinary success in restoring democracy and diffusing internal conflict in that country. The continuation of a democratic regime in Greece was strongly influenced by that country’s membership in the European Community. Portuguese democracy has also been influenced for the good by Community membership.
With a still-powerful Russia to their east and a newly-powerful Germany to their west, the former Soviet bloc countries of Eastern Europe are faced with their own problems of survival and renewal. There is every reason to expect that at some stage they either will be absorbed into the EC or its network, or older ideas of a middle European confederation may be revived, albeit more along lines of a confederation like that of the European Community to the west.
Turning to Latin America, the strengthening of federalism has been a significant item on the agendas of Argentina and Brazil in their turn from authoritarianism to liberal democracy. Brazil’s new constitution increases the formal powers of the states vis-a-vis the federal government in the name of democracy. The formal and rather weak federal system of Mexico is becoming a vehicle for the emergence of an effective and competitive political opposition there through the Mexican states. Venezuela has elected to strengthen its existing federal system by providing for the popular election of state and local chief executives to strengthen its democratic regime. Recently, there has been some promise that regional confederal arrangements in Central America will be playing a role in the restoration of democracy in Nicaragua and Panama and other countries of that region.
The end of the statist epoch: a paradigm shift
In the early 1990s the world as a whole is in a paradigm shift of major proportions from a world of states modeled after the ideal of the nation-state developed at the beginning of the modern epoch in the seventeenth century to a world of diminished state sovereignty and increased interstate linkages of a constitutionalized federal charcter. This paradigm shift actually began after World War II. It may yet turn out that the United Nations, founded in San Francisco in May 1945 as no more than a league of politically sovereign states with the elevated goal of maintaining world peace, that had been riven by the ultimately fatal struggle between the two great powers that led to the Cold War, was the first step toward this paradigm shift. Despite the developments in Western Europe which led to the radical diminution of the political sovereignty of the member states of the European Community, and similar developments in other parts of the world, particularly Southeast Asia (the Association of Southeast Asian Nations — ASEAN) and the Caribbean, it was not until the collapse of first the Soviet empire and then the Soviet Union itself between 1989 and 1993, that the extensive and decisive character of this paradigm shift became evident to most people, even (or perhaps especially) those who closely follow public affairs. Most of the latter were and still are wedded to the earlier paradigm that the building blocks of world organization are politically sovereign states, most or all of which strive to be nation-states and maximize their independence of action and decision. While there are a few who have been aware of this paradigm shift as it was taking place and some who have advocated it as a major political goal, for most it has seemed to have crept up unawares as it were.
Let us understand the nature of this paradigm shift. It is not that states are disappearing, it is that the state system is acquiring a new dimension, one that began as a supplement and is now coming to overlay the system that prevailed throughout the modern epoch. That overlay is a network of agreements that are not only militarily and economically binding for de facto reasons but that are becoming constitutionally binding de jure to radically restrict what was called state sovereignty and force states into various combinations of self-rule and shared rule to enable them to survive at all. The implications of this paradigm shift are enormous. Whereas before, every state strove for self-sufficiency, homogeneity, and, with a few exceptions, concentration of authority and power in single center, under the new paradigm all states had to recognize their interdependence, heterogeneity, and the fact that their centers, if they ever existed, are no longer single centers but parts of a multi-centered network that is increasingly noncentralized, and that all of this is necessary in order to survive in the new world.
The principal form of political organization in the modern and early post-modern epochs, that is to say, at least since the seventeenth century, has been the nation-state, politically sovereign in its territory and exercising that sovereignty over or in the name of the people of that territory on an exclusive basis. For well over 300 years, the major political efforts of European civilization as well as peoples and countries influenced by that civilization have been directed toward building such politically sovereign states, and all too often in reifying them so that the states take on an existence separate from the peoples they are designed to serve. We have just passed through what is in all likelihood the last great era of state-building, namely the establishment of such politically independent states in the Third World as a result of the decolonization process. Today there are over 180 such states recognized in international law and participating in international politics.
While this kind of state-building and even statism has been the common denominator of the modern age and its immediate aftermath, parallel to it there has developed a second system of polity-building, one in which the benefits of statehood, namely liberty and autonomy, or, in contemporary terminology, self-determination and self-government, are gained through what generally may be denominated federal arrangements. Such arrangements reached their apotheosis in the modern epoch in the form of modern federations such as the United States under its 1787 constitution, Switzerland after 1848, and Canada from 1867. Indeed, during the modern epoch only federation offered a model of statehood capable of serving as an alternative to the reified state.
Since the end of the modern epoch, however, other species of federalism and autonomy have begun to come into their own, so that today over 50 of the 180 politically sovereign states are either federations or include within them forms of self-determination and self-government which represent extensions of the federal principle or applications of the idea of political autonomy. Since several of these contemporary states embrace a variety of such arrangements (the United States and the United Kingdom each include six different ones), the total number of arrangements is well over 100. Well over 300 separate polities have state status or the equivalent through such arrangements, while hundreds of local governments also have a real measure of constitutionally grounded autonomy. Nearly 60 politically sovereign states are members of constitutionally-anchored confederal arrangements.
Thus, there has emerged a parallel system to the state system which, in a world growing more complex and interrelated, has begun to act in the international arena in a variety of ways. As a result, the two systems have themselves begun to interact. The informal linkages between them were always there; now formal ones are developing as well.
The rapid spread of this parallel system is in great part a response to the effort on the part of a number of the reified, politically sovereign states to force the peoples on their respective territories into the procrustean jurisdiction of a single central government. In other words, their goal has been “one people, one government and one territory.” In some cases this goal has been linked to revolutionary radicalism, in others to reaction; in some, it has been liberal in content, in others conservative. But whatever the form or content, federal arrangements in some form have become the common denominator of the age.
In all too many cases, the centralized sovereign state became the procrustean state at the very least. Indeed, the term that was invented to describe this new creature — “nation-state” — was, in itself, an ideal projection or a sleight of hand. We now are far enough removed from the process to recognize that rarely did the establishment of a particular state, embracing a given territory, reflect a pre-existing national homogeneity. In most cases, boundaries often were established by violent means. The formation of the nation came afterward when the central authority subdued all the dissident elements within the territory to make the self-defined nation-state a reality. In the course of its development, the nation-state often became a citizen state, where each person was individually a citizen but was not entitled to maintain any substantial group identity other than that of the official nation.
If the truth be told, the homogeneous polity with so close a linkage between people, government, and territory in every respect, simply has not come to pass, even in those countries where it once seemed to be farthest along the road. One major characteristic of the post-modern era is the ethnic revival, the re-emergence of the sense of primordial ties as central to individual identity. This development is reflected politically in the world-wide movement from class-based to ethnic-based politics.(1)
A second characteristic of the post-modern era is the linkage of peoples or nations across state borders. Inter-regional arrangements such as those in the Upper Rhine Valley offer one example of such linkages. There, people of Allemanian background living in three different nation-states — France, Germany, and Switzerland — a number of Swiss cantons, and the German land of Baden-Wurtenberg are linked together through a variety of devices.(2) State-diaspora arrangements of the kind that are characteristic of the Jewish people offer another example. Yet another is reflected in the interstate relations which are characteristic of the Arab world, which perceives itself as one Arab nation divided into a number of states but with trans-state linkages.
A third characteristic is the development of new governmental arrangements — at least new to the modern era (some have classic antecedents) — to accommodate post-modern trends. There are common markets which transcend the boundaries of the older nation-states. There are federacies and associated-state arrangements through which a principal state and a smaller one are linked together through asymmetrical federal ties for their mutual advantage.(3) Mini-states of a few thousand population have emerged that can exist because of the overall security shield provided by the great powers and the general predisposition on the part of the larger nations of the world to tolerate such entities and to protect them even though they could not protect or sustain themselves under the state system of the modern era. Among the new developments are entities within polities which possess autonomy or home-rule in one form or another. These new governmental arrangements have moved in two directions simultaneously, to create both larger and smaller political units for different purposes, to gain the economic or strategic advantages of larger size while at the same time maintaining smaller scale structures to secure certain kinds of indigenous communities, or to better accommodate ethnic diversity.
A fourth characteristic of the post-modern era is the establishment of new relationships between governments and territories, most of which flow out of these new governmental arrangements. The idea of more than one government exercising powers over the same territory was anathema to the European fathers of the modern nation-state. The twentieth century, on the other hand, is the age of federalism. Hence the existence of more than one government over the same territory, each with its special powers, competence, or tasks, is becoming an increasingly common phenomenon.(4)
A fifth characteristic, manifested in all these new relationships, is the growing reality of the limitations on sovereignty. No state today is as sovereign as any state was perceived to be 100 years ago, if only because even the great powers recognize their limits in a nuclear age when it comes to making unilateral decisions about war and peace. Many states are accepting these increased limitations and trading them off, as it were, for advantages. The European Union is the major example of how the acceptance of limitations on sovereignty in the economic sphere can be “traded off” for greater economic benefits under the military protection of the NATO security-community. It is not the only such example. At the other end of the Eurasian land mass, the members of ASEAN — the Association of Southeast Asian Nations — have taken substantial steps in the direction of limiting their freedom of action in many matters, while not formally limiting their political sovereignty, to attain greater military security and economic development.
A new theory of political relationships
The intellectual effort to come to grips with all of these phenomena has been much slower than developments in the real world. The accepted intellectual models of state-building in particular have tended to lag behind these new realities. Only recently is there beginning to be a recognition that new thinking and other models are needed to deal with them. More specifically, the dominant center — periphery model of statehood is being challenged by the champions of a new model which views the polity as a matrix of overlapping, interlocking units, powers, and relationships.(5) A separate theory of federal relations is developing to replace the nation, that the arrangements mentioned above simply represent points on a centralization — decentralization continuum. This theory is not confined to the definition of intergovernmental relations but is related to a larger understanding of politics, a federalist understanding which is challenging the dominant Jacobin — Marxian view on a number of fronts.(6)
The center — periphery model holds that sovereign power in a state is properly concentrated in a single center which may or may not be significantly influenced by its periphery. This model is derived from the organic theory of the polity and represents an effort to democratize preexisting monarchic or aristocratic polities by conquering and transforming the center of power in each. While its modern political sources are to be found in Bourbon France, in the works of French political theorists exemplified by Jean Bodin, and in Rousseau’s statist interpretation of the general will, its democratic expressions are principally Jacobin. Jacobinism is a European invention given form in the French Revolution and subsequently extended and reshaped by Marx and various socialist movements of the nineteenth century. Centralization is the organizational expression of Jacobinism, which distrusts dispersed power because of the historical experience out of which it grew, in which localism was synonymous with support for the pre-revolutionary power-holders.
Parallel to the center — periphery model is the pyramid model originally developed for such hierarchical states as ancient Egypt, modern Prussia, and Napoleonic France. It became a general model in the wake of the development of the administrative state, reflecting the managerial conception of political organization. While originally authoritarian in character, if not totalitarian, as a managerial model it has been adapted for democratic republics.
The matrix model, whereby authority and power are dispersed among a network of arenas within arenas, is almost inevitably federalist in its origins. Federalism is derived from covenant and compact theories of the polity and, in its modern form, represents the effort to democratize republicanism. For moderns, its immediate political sources were the Puritans, Reformed and Calvinist theologians, Hobbes, Locke, and Montesquieu. The foundations of modern federalism are to be found in the American revolutionary experience, including its constitution-making phase. The most articulate expressions of this model are to be found in The Federalist and Alexis de Tocqueville’s Democracy in America. Its organizational expression is non-centralization, the constitutional diffusion and sharing of powers among many centres. Its logical outcome is the construction of the body politic out of diverse entities that retain their respective integrities within the common framework.
The federal principle and its uses
Utilizing the federal principle does not necessarily mean establishing a federal system in the conventional sense of a modern federation. A federation is a polity with a strong overarching general government whose constitution is recognized as the supreme law of the land and which is able to relate directly to the individuals who are dual citizens in both the federation and their constituent states. The position and autonomy of the latter are constitutionally protected. Despite the tendency to limit federalism to that model, the federal principle actually is embodied in a wide variety of structures, each adapted to a particular polity. This is possible because the essence of federalism is not to be found in a particular kind of structure but a particular set of relationships among the participants in a political system. Consequently, federalism is a phenomenon that provides many options for the organization of political authority and power; as long as the proper relations are developed, a wide variety of political structures can be developed that are consistent with federal principles.
What is federalism?
Federal principles are concerned with the combination of self-rule and shared rule. In the broadest sense, federalism involves the linkage of individuals, groups and polities in lasting but limited union, in such a way as to provide for the energetic pursuit of common ends while maintaining the respective integrities of all parties. As a political principle, federalism has to do with the constitutional diffusion of power so that the constituting elements in a federal arrangement share in the processes of common policy-making and administration by right, while the activities of the common government are conducted in such a way as to maintain their respective integrities. Federal systems do this by constitutionally distributing power among general and constituent governing bodies in a manner designed to protect the existence and authority of all. In federal systems, basic policies are made and implemented through negotiation in some form so that all can share in the system’s decision-making and executing processes.
As many philosophers, theologians, and political theorists in the Western world have noted, the federal idea has its roots in the Bible. Indeed, the first usage of the term was for theological purposes, to define the partnership between humans and God described in the Bible which, in turn, gave form to the idea of a covenantal (or federal) relationship between individuals leading to the formation of a body politic, and between bodies politic leading to the formation of compound polities. The political applications of the theological usage gave rise to the transformation of the term “federal” into an explicitly political concept.
The term “federal” is derived from the Latin foedus which, like the Hebrew term brit, means covenant. In essence, a federal arrangement is one of partnership, established and regulated by a covenant, whose internal relationships reflect the special kind of sharing which must prevail among the partners, namely one that both recognizes the integrity of each partner and seeks to foster a special kind of unity among them. Significantly, shalom, the Hebrew term for peace, is a cognate of brit, having to do with the creation of the covenantal wholeness that is true peace.
The spread of the federal idea
The federalist revolution is among the most widespread of the various revolutions that are changing the face of the globe. Federalism has emerged as a means of accommodating the spreading desire of people to preserve or revive the intimacy of small societies, and the growing necessity for larger combinations to mobilize the utilization of common resources better. Consequently, federal arrangements have been widely applied, on the one hand, to integrate new polities while preserving legitimate internal diversities and, on the other, to link established polities for economic advantage and greater security. Nearly 80 per cent of the world’s population now live within polities that either are formally federal or that utilize federal arrangements in some way, while only 20 per cent live in polities that can be denominated as outside of any federal arrangements.
Accompanying this spread of federalist arrangements has been an expansion of the variety of means for translating the federal idea into practice. Whereas in the nineteenth century federalism was considered particularly notable for the rigidity of its institutional arrangements, in the twentieth century it has come to be particularly useful for its flexibility when it comes to translating principles into political systems. Pre-modern Europe knew of only one federal arrangement: confederation. In a confederation, the general government is the creature of and subordinate to the constituent governments and can only work through them. While it may be established in perpetuity, it is quite limited in scope. Two centuries ago, the United States invented modern federalism and added federation as a second form, one that was widely emulated in the nineteenth century. In the twentieth century, especially since World War II, new forms have been developed or federal elements have been recognized in older ones previously not well understood.
Confederation: Several pre-existing polities joined together to form a common government for strictly limited purposes, usually foreign affairs and defence, and more recently economics, that remains dependent upon its constituent polities in critical ways and must work through them.
Federation: A compound polity compounded of strong constituent entities and a strong general government, each possessing powers delegated to it by the people and empowered to deal directly with the citizenry in the exercise of those powers.
Government, LTTE to take up core issues, Balasingham to meet PM: Political breakthrough in peace process
from Rodney Martinesz in Bangkok
The Liberation Tigers of Tamil Eelam (LTTE) appeared to have shelved its demand for an interim administration for the North-East while looking at ‘models’ that would satisfy its concept of self-governance.
“We may or may not go for an interim administration. What is important is a solution that would immediately address the humanitarian issues in the North,” LTTE chief negotiator Dr. Anton Balasingham said yesterday.
Balasingham told journalists at the joint media briefing ending the second round of peace talks in Bangkok, that although they demanded an Interim Administration as a transitional measure, they would also like to address core issues. This is widely seen as a major breakthrough in the peace process.
“Now that a Political Affairs Committee has been set up, we could explore various models from international parallels that would accommodate minority demands,” he said.
Balasingham also said he was looking forward to meeting Prime Minister Ranil Wickremesinghe at the November 25 donor conference in Oslo were he (Balasingham) would be highlighting humanitarian issues in the North.
His counterpart in the peace delegation, Minister Prof. G. L. Peiris said they would explore models in other countries where similar conflicts prevail and adopt the same to suit the Lankan situation.
Balasingham said they should look into “federal or confederal” models.
This is the second occasion in successive rounds of talks that the LTTE had come down on its demands. Earlier in Sattahip, the LTTE renounced its demand of Eelam.
The LTTE’s shift from its demand for an Interim Administration came in the wake of the groundbreaking decision by the parties to commence political negotiations to end the two decades-old ethnic conflict.
“Prospects look good,” said Norway’s deputy foreign minister Vidar Helgesen. He cautioned that no quick results should be expected from the process despite the early gains.
He said the two sides agreed to “significant steps to restore normality, improve security and address political issues.”
Towards this end, a sub-committee had been set up to address the constitutional, legal and administrative issues among a host of other details.
The Bangkok talks also saw the establishment of two other committees – one in place of the proposed Joint Task Force to guide rehabilitation and humanitarian assistance for the North and the sub-committee on de-escalation and normalisation.
The latter will examine ways and means to ensure resettlement, the return of private property and resumption of economic activities in the North.
The sub-committee will include high-level civilian and military personnel on both sides including Defence Secretary Austin Fernando and LTTE Eastern commander Karuna.
Responding to journalists, Peiris said the mainstream public opinion in the South was firmly behind the peace process and that he had no doubt even of the support of the President given the benefits that followed the ceasefire.
“The parties demonstrated a positive, pragmatic and conciliatory approach in discussing a wide range of issues, including present challenges as well as matters relating to the long-term solutions,” the Norwegian government said in a statement.
“The parties thereby continued the dual approach of moving step by step towards a lasting political settlement, while remaining fully focused on the ground situation. The parties reconfirmed their strong commitment to the Ceasefire Agreement,” it said.
Asked on the position of PTA detainees, Balasingham said there were still 193 left, out of which 75 would be released in terms of a government assurance.
Peiris said the agreement was to expedite matters in terms of the legal system and a methodical way to deal with the issue.
Balasingham said the LTTE’s ultimate aim was to enter the “democratic framework” and all Tamil political groups would be welcome to take part in political activity.
“Since we have committed to enter the democratic political mainstream, we have to accept other political parties and allow them to participate in the democratic politics in the North-East,” he said.
He denied that the LTTE was recruiting underaged youth into its ranks and said Amnesty International experts would be attending the next round of talks in Oslo between December 2 and 5.
The peace process achieved a major breakthrough on Saturday with the government and the LTTE commencing negotiations for a political solution to end the 20 year old ethnic conflict.
This is also the first time in the five rounds of peace talks under different administrations that a dialogue on a political settlement had commenced, the sources added.
It was also an index of the determination by the parties to pursue the goal of peace to see an end to the conflict that had ravaged the nation for over two decades.
Speaking to the media after Saturday’s talks Peiris said the government and the LTTE agreed to jointly research a model to end Sri Lanka’s two decades of ethnic bloodshed.
“We have virtually agreed to everything,” Peiris said. “We have made progress that no one thought was possible. We have tangible results.”
“We are very optimistic… the peace process is making substantial progress… We are even having very friendly discussions even when we are not at the negotiations,” Balasingham said.
The third session of talks will take place on December 2 and 5 in Oslo, Norway. The following sessions will be held in Thailand: January 6 to 9, 2003, February 7 to 11 and March 18 to 21.
The Sub-Committee on Immediate Humanitarian and Rehabilitation Needs in the North and East, as proposed in the talks, will include four members selected by the LTTE and four by the government. Two members of the respective negotiating teams, S.P. Thamilselvan of the LTTE and Mr. Bernard Goonetilleke of government will be leading members of the Sub-Committee.
Other Government representatives will include Mr. M.D.D. Peiris, Mr. M.I.M. Rafeek, and an additional member of the Muslim community. Other LTTE representatives will include Mr. Jay Maheswaran.
The Sub-Committee will be assisted by a secretariat to be located in the Government Agent’s Office in Kilinochchi. Meetings of the Sub-Committee will be held in Kilinochchi, Colombo, Batticaloa, and Kalmunai.
The Sub-Committee on Political Matters will be chaired by the heads of delegations Anton Balasingham and G.L. Peiris. Other government representatives will include Rauf Hakeem, leader of the Sri Lanka Muslim Congress. (CDN – Nov 4,2002)
The Official Languages’ Act of Canada
Department of History,
Following the recommendations of the Royal Commission on Bilingualism and Biculturalism established in 1964 to investigate the problems of Canadian unity, the government of Pierre E. Trudeau passed, in 1969, Bill C-120 – An Act Respecting the Status of Official Languages in Canada (17-19 Eliz II, c. 54). The law fitted well in the objective of the Trudeau government of recognizing the French and the English languages as equal in Canada and aimed at opposing the concept of a French Canada to that of a French Quebec (see Jean Lesage): all of Canada would be recognized as the home of French Canadians and not only Quebec. With increased identification of francophones with Canada, and a greater role given to French Canadians and their language in the federal government, Trudeau hoped to rechannel Quebec nationalism and deliver a deadly blow to separatism in Quebec.
Section 2 of the bill stated that English and French are the official languages of Canada and that they “enjoy equality of status and equal rights and privileges as to their use in all of the institutions of the Parliament and Government of Canada.” Section 5 declared that the final decisions of the federal courts were to be issued in both English and French and S.8 stated that both the English and French versions of a law enacted by the Parliament of Canada are equally authentic. Section 9 made it the duty of each agency of a Crown Corporation in Ottawa or in a bilingual district to ensure that services were available in both official languages. Bilingual districts might be set up in such areas of Canada where the federal government felt that the percentage of population of the official minority might be sufficiently great to warrant the establishment of bilingual services. Section 19 established a Commissioner of Official Languages whose duties are to see that measures are taken so that both languages are recognized, to carry out investigations, to hear complaints and make recommendations to the federal government.
Although initially daring in its proposals, given the history of minority language rights in Canada and the resistance to bilingualism of segments of the population, the principle of the bill has increasingly received widespread support throughout Canada although its application has come sharply under attack from time to time. The bill was only accepted after the federal government agreed to shift from a policy of “biculturalism” to one of “multiculturalism”. In 1974, the constitutionality of the bill was challenged in the Supreme Court of Canada by a member of Parliament and the sitting Mayor of Moncton (Jones v. the Attorney-General of Canada, 45 DLR 1974). The Act was unanimously upheld by the court by virtue of the Peace, Order and good Government and Criminal Law and Procedures clauses (91-27).
The bill has been revised twice in a significant manner to strengthen some of its provisions. In 1982, some of its provisions were constitutionalized by their insertion into the Canadian Charter of Rights and Freedoms (ss. 16-22).
Supremacy of Parliament and the Canadian Charter of Rights and Freedoms
Department of History,
Supremacy of Parliament was one of the main characteristics of the British constitution applicable to Canada. Parliament was deemed to have sovereign and uncontrollable authority in the making, amending and repealing of laws. Nothing was beyond its capacity to legislate upon. Parliament was the place where absolute legislative power resided. It could do everything that is not naturally impossible. Strictly speaking, in a country of supremacy of Parliament, Parliament cannot issue an unconstitutional law since there are no bounds to its authority.
Supremacy of Parliament to 1982
This feature of the British constitution was transferred to Canada when legislatures were first created in the period after the conquest. The only restrictions that applied were those connected to the colonial status of the various provinces, the British Parliament having reserved for itself some of the legislative powers appertaining to sovereign authority. The preamble to the Constitution Act, 1867, stated that Canada was to have a constitution “similar in principle to that of the United Kingdom”. Through this, it confirmed that supremacy of Parliament also applied to Canada. The full extent of the supremacy, save for the part that touched upon the amendment to the constitution, was transferred to Canada by the Statute of Westminster in 1931.
However, while it is clear that supremacy of Parliament applied to Canada, partly before and entirely after 1931, the supremacy must be understood in Canada in the context of the federal system. What was supreme in Canada was Parliament, understood as the sum total of all the legislative bodies of the country, provincial and federal, each in their sphere of jurisdiction. Thus, it was possible for a legislative body to enact legislation deemed unconstitutional if it had acted beyond its legislative authority, if it had not legislated within its sphere of jurisdiction. Evidently, the courts would strike down legislation that was beyond the legislative powers of the federal Parliament, if it invaded provincial jurisdiction, or of the provincial legislatures, if it invaded federal jurisdiction.
To sum up, before 1982, one could always be certain that the legislative bodies of Canada could adopt laws, even of the most oppressive nature, as long as they acted within their fields of jurisdiction, that they did not invade the jurisdiction of the other level of government. This is why citizens facing repressive legislation rarely argued before the courts that such legislation could not be issued; rather, they would claim that the legislative body had acted beyond its power, such power residing only in the other level of government. It would be admitted that some level of government could adopt repressive legislation; however, it was frequently claimed that it was only the other level of government that could do it. Such was the nature of constitutional contestations in Canada regarding the Supremacy of Parliament before 1982.
Supremacy of Parliament under the Canadian Charter of Rights
At that point, with the Constitutional Act, 1982, Canada diverted from a strict regime of Supremacy of Parliament. By including a Charter of Rights and Freedoms in the Constitutional Act, 1982, Canada appeared to end Supremacy of Parliament. The Charter is clear on this point : it is stated in s. 32 (1) that it applies, or binds, the federal Parliament and the legislatures of the provinces. Thus, legislation not conforming to the Charter is unconstitutional. Supremacy has been shifted, or so it would appear, from Parliament to the Constitution and thus to the people. One should not be surprised at this outcome: why else would a Charter of Rights and Freedoms be issued if not to restrict the legislative powers of those that govern us? The prime purpose of a Charter of Rights is to affirm that some rights and freedoms are so important, and so dear to individuals and the democratic process, that never should they be infringed upon, even should a large number of people so wish it to be. Its purpose is to protect individual and minority rights against the “tyranny of the majority” as expressed by the majority in the legislative bodies.
However, in the Canada of 1982, many were weary of departing completely from a regime of Supremacy of Parliament to jump into an American-style regime of Supremacy of the Constitution, of the supremacy of a Charter of Rights. Some argued that a country should not turn so clearly its back on its historical experience. Others claimed, not without validity, that Canada had been served well by a regime of Supremacy of Parliament, that our record on human rights with such a regime was probably better than that achieved by the United States under a Bill of Rights, better than a country under which slavery and segregation were permitted and lawful even when it had affirmed that “all men were born equal” and “with inalienable rights”. In any case, some of the champions of the principle of Supremacy of Parliament would have opposed the Charter altogether if concessions to the principle of Supremacy of Parliament were not made. As the November 1981 constitutional conference between the provinces and the Trudeau government made it clear, the latter had either to accept concessions and maintain a measure of supremacy in the legislatures or else there would be no Charter of Rights. These factors explain why some restrictions were written into the Charter of Rights.
Three types of restrictions on individual rights were written into the Canadian Charter of Rights and Freedoms: first, there is a general restriction in s. 1; secondly there are several specific restrictions in a number of individual articles; lastly there is the notwithstanding clause found in s. 33. These are explained and discussed briefly below.
- The general restriction of s. 1
Section 1 makes it clear that the rights defined in the 34 articles that the Charter contains are not absolutely guaranteed, that they can be infringed upon by Parliament and the provincial legislatures. It states that the rights of the Charter are subjected “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The language used is very clear: a legislative body may issue a law, though it infringes upon the rights defined in the Charter, if this law merely just “limits” the right (presumably it could not abolish it), if such limits may be deemed reasonable in a free and democratic society. Thus, any legislature that enacts laws of a restrictive nature is bound to show up before the courts to argue that their “restriction” is justified to protect a free and democratic society. To use examples: in the Second Word War, newspapers were suppressed to protect our society and it was argued that Japanese Canadians were interned for the same reason. Would a Charter with a s. 1 have made a difference? In 1970, the Trudeau government adopted the War Measures Act, and many innocent people went to jail because of it. Would they have been saved this ordeal had a Charter of Rights with a s. 1 existed? Supporters of the clause argue that it is necessary to protect minorities from hate literature, children from exploiters, the people from powerful lobbies etc. Still, it is clear that Canada does not consider that rights are absolutes.
- Specific restrictions
Several articles of the Charter are written with a qualifier that restricts the generality of the rights defined. The net effect is to narrow significantly the range of rights and freedoms granted. For example s. 2 declares that there is a right to peaceful assembly; s. 8 guarantees against unreasonable searches and seizure; s. 11 provides that upon arrest the accused must be informed of the charge not immediately but without unreasonable delay; an individual may not be denied reasonable bail without just cause; s. 12 provides guarantees against cruel and unusual treatment; s. 23 guarantees that minority language people have access to minority language schools but only where the number of such children warrants it; evidence improperly obtained will only be excluded from the court if such evidence “would bring the administration of justice into disrepute” (s. 24), etc.
- The notwithstanding clause
Although frequently not well understood, the best-known restriction written into the Charter of Rights and Freedoms is the notwithstanding clause found in s. 33 of the Charter. The article stipulates that a law that infringes upon the Charter may still apply if such a law specified that it is enacted notwithstanding (regardless of) the provisions of the Charter. Thus, s. 33 clearly reintroduces the notion of Supremacy of Parliament. The legislative bodies of Canada can have the last word on a number of issues.
- 33 does not apply to the whole of the Charter. It can be used to derogate from ss. 2 (fundamental freedoms), 7-14 (legal rights) and 15 (equality rights, the non-discrimination clauses). It cannot be applied to the following category of rights: democratic rights (ss. 3-5), mobility rights (s. 6), official languages (ss. 16-22), minority language rights (s.23) and aboriginal rights (s. 35; this section is not specified in the Charter of Rights). In general, the legislative bodies can legislate notwithstanding individual rights but not collective rights.
The notwithstanding declaration only has validity for five years (s. 33 – 3) after which it dies unless it is reissued. It can never apply to gender rights (equality of male and female persons) as s. 28, with a notwithstanding clause of its owns, forbids it.
Some have argued that the notwithstanding clause renders the Charter “not worth the paper it is written on”. Such views are exaggerated as the right is restricted in scope and time. It has rarely been used and might be used to actually enhance rights of some individuals or groups. I am convinced that its presence, by allowing that democratically elected individuals can have the last word, has had a beneficial effect on rights in Canada. The Supreme Court of Canada, generally a Liberal court in any case, has not had to exercise judicial restraint in interpreting rights, as is customary in such situations since it can leave the legislative bodies with the last word. The parliamentarians have rarely dared curtail the liberal interpretations of the Court.
The introduction of the Charter of Rights and Freedoms has curtailed, to some extent, the principle of Supremacy of Parliament in Canada. It cannot be said that the legislative bodies in Canada can do as they please as was the case once upon a time. They have been restricted by specific provisions of the Charter. Neither can it be said that Canada has moved into a system of unfettered Supremacy of the Constitution (Charter). The restrictions of the Charter are too considerable not to recognize them. Thus, Canada has created a mixed system. In a country that prides itself to be reasonable and to govern by compromise, the Charter may be said to be typically Canadian.
October 11, 2000 – Canadian Federalism and Québec’s vision
I would like to briefly sketch how the main trends in Canadian federalism have developed in recent years and set forth the political conclusions that the Québec government has drawn from them.
In theory, federalism is supposed to be a form of political organization whereby several member states choose to come together and delegate part of their sovereignty, hence part of their responsibilities, to a central federal state. Many feel that a federal system can enable different communities to coexist within a common political entity because it can be flexible and can adapt to the specific features of its components.
Federalism as a political form of organization has had undeniable successes, such as the United States. In other cases, it has given rise to soul-searching debates. This has notably been the case with Europe, where member states have mixed feelings about the European Union going down the road to federalism.
Beyond the theoretical principles of federalism, however, I feel that we should avoid drawing general conclusions about this form of political organization. It seems to me more appropriate to make judgments on a case-by-case basis.
I would like to discuss Québec’s experience within the Canadian federal system with reference chiefly to three points that are often associated with federations: respect and promotion of the identity of its components, flexibility and adaptation to specific features and, finally, respect for areas of jurisdiction in relations between governments.
To understand the question of Québec, we need to take into accountthe following basic premise: Québec is the only society with a French-speaking majority and a well-defined territorial base on the North American continent. This same society is aware of its specificity and has always claimed a status, and powers, enabling it to preserve and strengthen its identity.
Initially a French colony and then part of the British Empire followinga military conquest, Québec society existed well before Canada wascreated in 1867. It was already distinct with its French-speaking majority,its culture, its civil law tradition, and its own institutions. It wasas this kind of society that Québec signed the 1867 Canadian Constitution, that is, on the basis of a pact between two founding French- and English-speaking peoples, thereby establishing a federal system in which the two levels of government would be, so it was thought, sovereign in their respective spheres of jurisdiction. Québec felt it would then have the leeway it needed to preserve its identity.
Québec’s desire to maintain its identity was asserted even moreintensely in the early 1960s when a modern Québec state emergedduring the period of the Quiet Revolution. Gradually, the notion of a Québec people took clearer shape and the Québec state was confirmed in its responsibility of protecting and developing the identity of this Québec people.
Meanwhile, another vision of identity emerged in Canada. This was the vision of “One state, one nation,” based no longer on the dual vision of the 1867 pact between two founding peoples but on that of multiculturalism, which has the effect of trivializing the identity of the Québec people. This vision of Canadian identity gave the federal government an omnipresent role and pushed Canada into becoming an increasingly less federal and more unitary state. This vision of Canada is just as legitimate as Québec’s. The fundamental problem, however, lies in the fact that these two visions are incompatible and cannot cohabit within the same political system.
Québec’s vision has traditionally implied a quest for more political autonomy flowing from a status based on special responsibilities relating to its identity as part of an asymmetric federal system. The Canadian vision based on multiculturalism implies an omnipresent central government and equality between the provinces, thus ruling out any kind of recognition of special status for Québec.
The unilateral repatriation of the 1982 Constitution without Québec’sconsent was the most striking episode of the clash between these two visions of identity. The Canadian government imposed on Québec a substantial reduction in the powers of Québec’s National Assembly. Québec had imposed on it an amending formula that has turned out to be a constitutional straightjacket. Any change requires unanimity or the support of at least seven provinces making up over half of Canada’s population. The unilateral repatriation amounted, in a sense, to a rupture of the dual pact of 1867 between two founding peoples.
No Québec government, either federalist or sovereignist, has signed the 1982 Constitution. It, therefore, has no legitimacy in Québec.An impasse still persists over Québec’s political status.
Since this episode, all attempts at constitutional reform to bring Québec into the Constitution have ended in failure. These attempts all shared the same central point: recognition of Québec’s distinct character.
The death of the Meech Lake Accord and the failure of the Charlottetown Accord in the early 1990s can be explained by Canada’s inability to recognize the existence of the Québec people in the Constitution and their specificity. The concept of a distinct society is today a taboo subject in English Canada. Even a symbolic recognition of Québec’s specificity has become unacceptable in the eyes of the rest of Canada. Even more taboo is recognition that Québec should be granted special responsibilities that relate to its specificity. Therein lies the nub of Canada’s problem.
Why is Canada so unable to make allowance for the existence of the Québecpeople? Essentially it is because of the clash between two visions of identity and, consequently, of the impossibility of reconciling, on the one hand,Québec’s quest for autonomy within asymmetrical federalism and, on the other, the emergence of an omnipresent central government existing over provinces that are equal to each other. The path to constitutional reform is blocked.
Proof of this is apparent from the aftermath of the extremely close outcome of Québec’s referendum on sovereignty in 1995. Any other normal federal state would have straight away begun a wide-ranging effortof constitutional reform in order to meet the profound desire for changeand the aspirations of the Québec people. The clashing visions ofidentity have paralyzed any action in this direction by the federal government.
The lack of recognition of the Québec people and their specificityhas led to an absence of flexibility or adaptation by the federal systemwith regard to Québec’s special nature.
The principle of equality between the provinces implies an impossibilityof any kind of recognition of special status for Québec, even atthe administrative level. Such a move would be perceived in the rest ofCanada as preferential treatment for Québec.
In the case of administrative agreements, the principle of equalityof the provinces is applied by a clause for so-called equality of treatmentbetween the provinces. This clause has a leveling effect. Any conditionoffered to one province must be offered to all provinces, thus implyinga reopening of existing bilateral agreements. In practice, the federalgovernment establishes a standard in its first bilateral agreement witha province and the standard will then be offered to all other provinces.Because the other Canadian provinces do not wish as much decentralization or as many additional responsibilities, Québec is trapped by this leveling down to the lowest common denominator. It cannot hope to get more responsibilities or leeway than whatever Ottawa has agreed to give the other provinces.
The Social Union Agreement signed last year by the federal government and the provincial governments, except Québec, is a concrete example of this kind of leveling federalism, which is unable to take Québec’s specificity into account.
This agreement was reached at the end of negotiations in which the Québec government had participated actively. It had done so on the basis of an interprovincial consensus on the framework for federal social program spending, including an opting-out provision with full financial compensation for any province preferring to bring in its own initiative instead of taking part in a new pan-Canadian social program. This interprovincial consensus that reflected Québec’s historical position on federal spending power did not last. “Québec has been stood up by its partners for the third time in 20 years.” That was the reaction of one eminent Québec federalist and a former leader of the Québec Liberal Party, Claude Ryan.
The agreement has no real opting-out provision with compensation that would ensure respect for provincial constitutional jurisdictions in social programs. On the contrary, it assigns the federal government a role as the leading architect of social programs, a role that the Constitution does not acknowledge but which Ottawa has given itself through its spending power.
This leads me to my third point in analyzing Québec’s experiencewith Canadian federalism: respect for areas of jurisdiction in relationsbetween governments.
The power that the federal government has progressively assumed in areas of provincial jurisdiction has distorted the division of constitutionalresponsibilities between the governments. For taxpayers, this means costly administrative overlaps and duplications being piled on top of an already excessive tax burden. This spending power, however, is but the symptom, or sign, of a much deeper problem: the fiscal imbalance prevailing between the financial resources and respective responsibilities of governments in Canada.
In Canada, the division of tax resources between the two levels of government is not proportional to the division of expenditures that they must bear because of their respective constitutional responsibilities. The provinces bear the major portion of social program costs but the federal government has a larger share of the tax resources to pay for them.
This fiscal imbalance has systematically worked to the federal government’s benefit over the years. It originated in the federal government’s refusal to give back to the provinces the tax room that the provinces had lent it to pay for the war effort during World War II. After the war, instead of letting the provinces levy their own taxes to pay for their programs, the federal government preferred to give them cash transfers. This fiscal predominance of the federal government has helped encourage an increase in federal spending power in areas that come under exclusive provincial jurisdiction.
The fiscal imbalance aggravates the total tax burden on taxpayers. They end up being taxed twice because the federal government levies and uses, for other purposes, taxes that normally should be available to the provinces to pay for their own programs. The provinces have no other choice but to tax their taxpayers even more.
Successive Québec governments have many times denounced the existence of this fiscal imbalance in the Canadian federation and have demanded that Québec be able to have all of the tax resources needed for it to pay by itself the programs that come under its exclusive jurisdiction. To pay for its social programs, Québec has traditionally preferred to levy its own taxes instead of getting funding from the federal government. For over 20 years, however, Ottawa has transferred no tax points to Québec!
On the basis of the three points of analysis-respect for identities,adaptation to special characteristics, and respect for jurisdictions in relations between governments-Québec’s experience with federalism has been very unsatisfactory, essentially because of the refusal by the central government and the other provinces to recognize the existence of the Québec people and the special responsibilities borne by the government that has been empowered to meet their aspirations.
For this reason, we have come to the conclusion that the current impasse can be broken only through Québec’s accession to sovereignty. Only then will it have the means it needs to preserve and develop its identity.
The project to create a sovereign Québec is a modern one. It is a project of a Québec resolutely open to the world. Québec already exports over half the production of its economy. The Canada-U.S. Free Trade Agreement would have been impossible without support from Québec-a fervent proponent of free trade.
Québec intends to leave the current system in a context of globalization where small states are successfully inserting themselves into increasingly larger economic blocs while preserving their national identity. Affirming one’s identity as a nation state and being a willing participant in globalization are fully reconcilable.
For us sovereignists, the coming years will be important. The belt-tightening and budgetary restructuring have paid off and the Québec people will be even freer to make choices than ever. Confronted with a Canadian federalism that refuses to make any special allowance for Québec, sovereignty will gain further support among young people, who are anxious to turn their backs on old quarrels and take up the inspiring challenge of change, and among federalists who are tired of the endless bickering but for whom resignation is not a viable option.
To become sovereign, Québec may also count on means that wereunavailable to it in 1980 and 1995. In fact, two of them have been provided by a boomerang effect from the federal reference to the Supreme Court.
The first one is the obligation of negotiation that the advisory opinionhas imposed on the federal government. There is no longer any questionof the federal government shirking this obligation. There is no longerany question of the federal government doing as it did in 1980 and 1995and asserting flat out that it would not negotiate.
I think people fail to realize to what degree this aspect of the SupremeCourt opinion has radically changed the political landscape. Not only does the Supreme Court recognize the legitimacy of the Québec sovereignty movement, but it also compels all participants in the Canadian federation to take note of the democratic will of the Québec people and respect it.
Another means that Québec did not have in 1980 and 1995, butwhich the Supreme Court gave it in 1998, is the requirement for properconduct and good faith during negotiations on the accession to sovereignty. The Supreme Court has clearly indicated that failure to comply with thisrequirement by the Canadian party would create a legitimate opportunityfor Québec to go ahead with de facto accession to sovereignty. Onceagain, you see how many light years away we now are from what the federal government always told us on this issue.
Québec’s accession to the status of a sovereign state will obviouslycome about democratically. It is up to the Québec people, and theyalone, to freely determine their political future. They will again be calledupon to decide their political future in a forthcoming referendum.
I am banking on the deep attachment to democratic values that Canadians share with Quebeckers. I remain convinced that the democratic will freely expressed by the Québec people at that referendum will be heard and respected, both here and elsewhere. Thank you.
Constitution of Canada
Department of History,
To the layman, Constitution of Canada, is interchangeable with the Constitution Act, 1867. Nothing could be further from the truth. Canada is a country which is said to have a constitution “similar in principle to that of Great Britain.” That is not quite so; we would also have to say that we have a constitution similar to that of the United States. That is what constitutes the originality of the constitution of Canada: it has married the American federal system with British constitutional practices. That part of our constitution that
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is generally similar to that of the United States is on the whole written. That which is generally similar to that of Great Britain is, on the whole, unwritten. As a result, there is not a single document which can be called the Constitution of Canada. The documents that are contained in the Constitution of Canada are subject to debate. If one adopts a fairly wide interpretation of the term, one would have to include: 1) the Constitution Act (1867) which embodies its federalist principles and all of the amendments to this Act since 1867. There are 20 such amendments. 2) It also includes a number of laws and Orders in Council of Great Britain in relation to Canada (ex. Rupert’s Land Act of 1868; Statute of Westminster, 1931). 3) It includes laws of the Parliament of Canada in relation to provincial questions (ex. Manitoba Act, 1870; Alberta and Saskatchewan Acts, 1905 ; the Act of Union of Newfoundland and Canada, 1949) as well as several laws regarding fiscal arrangements between the federal government and the provinces and which had a quasi constitutional status (1942, 1947, 1952, 1957, 1962, 1967, 1972). 4) Laws of the Parliament of Canada in relation to the frontiers of the provinces (5 of them were passed in 1912 extending the frontiers of Manitoba, Ontario, Quebec). There is also an unwritten part to the Constitution of Canada. This is usually called Conventions of the Constitution.
Quebec, the Constitution and Special Status
Department of History,
Special status is a method used historically to deal with Quebec’s distinct culture and a formula proposed since the 1960’s by which Quebec would be given further special considerations and powers so that its distinct culture could be protected and developed while continuing to be part of the Canadian federal system.
At various stages of its history, the authorities governing Canada have explicitly recognised that Quebec “is not a province like the others” and thus must be accorded special constitutional protection. The first of these recognition was made in the Quebec Act when Quebec was given by Britain a constitution quite unlike that granted to other parts of the
Empire: there was no assembly, few taxes, no anti-Catholic Test Oath, and French civil laws were recognised. The latter two exceptions were maintained, through subsequent constitutions to this day.
The special character of Quebec was consecrated in several articles of the B.N.A. Act of 1867. It was at Quebec’s insistence that federalism was adopted, thus enabling French Canadians to control fully the government of a province for the first time. The federal system took care of most of the fears that the francophone and anglophone minorities might have had; francophones were worried about the minority position which they were to occupy in the federal government, while the anglophone minority was anxious about the prospect of living in a province which would be dominated politically by French Canadians. While it is clear that what predominates in the B.N.A. Act is the equality of status granted to all of the provinces, as they would all live under a similar constitutional regime and would all exercise roughly the same juridical powers, the equality did not mean that fundamental differences were not recognised. In this respect, Quebec obviously stood out and several articles demonstrated its special position:
The B.N.A. Act granted equality of representation between regions in the Senate of Canada. Each region was to have 24 Senators who had to own property or reside in the province for which they were appointed. In the case of Quebec, each of the 24 Senators had to be appointed for one of the 24 Electoral Divisions of Lower Canada (s.22-3) and had to own property or be resident not only of the province but also of the Electoral Division for which they were appointed (s.23-6). The purpose of this article was to provide for an adequate representation for both the French-catholic and the Anglo-protestant groups of Quebec in the Senate. It would be difficult for the government to appoint a senator that did not share the cultural characteristics of the district for which the appointment is made.
The House of Commons:
The method of calculation adopted to implement Representation by Population in the House of Commons was rather unorthodox. Quebec was to have a fixed number of 65 seats (s.51-1) and the representation that the other provinces would receive was to be calculated on the Rep. by Pop. ratio obtained in Quebec (s.51-2). In this way, even if Quebec’s population did not keep pace with that of the rest of the country, it would always continue to have a block of 65 seats. Ultimately, if Quebec continued to vote as a block, as was fully expected, it mould always be assured to play a significant role in federal politics. Cartier apparently insisted that the system of representation be based on Quebec so as to protect the political weight of the province in Confederation.
The Provincial Constitution:
In two respects, the provincial constitution of Quebec was different from that of the other provinces: the Legislative Council of Quebec (non-existent in Ontario) was to have 24 members who were to represent each an Electoral Division and generally have the same qualifications as the Senators coming from Quebec (ss.72-73). There was no fixed number of councillors in provinces where a Legislative Council existed. The aim of these articles was to assure an adequate representation for the Anglo-protestant minority on the Council.
As well, a restriction was introduced upon the capacity by the province to alter the electoral boundaries of 12 electoral districts in Quebec. Changes could only be made in the boundaries of these districts if a majority of their representatives agreed to the change. All 12 of these districts had an anglophone majority in 1867 (s.80).
Quebec’s right to legislate on education was subjected to restrictions in relation to the denominational school rights that Roman Catholics and Protestants enjoyed by law at the time of the Union. Similar restrictions existed also for Ontario (s.93 1-2).
Legal system and Courts:
Provisions were made in the B.N.A. Act for the possibility of unification under federal jurisdiction of property and civil rights laws in Canada. This provision reflected the centralist vision that prevailed in the common law provinces. Quebec was excluded from this system and was thus guaranteed to control, forever, its French civil law system. This is by far, the most important special consideration given to Quebec (s.94). Judges for the courts of Quebec had to be selected from the Bar of that province (s.98). Judges from the courts of the other provinces would also be picked from the Bar of their respective provinces until the unification of laws would be achieved; thereafter, they could be picked from anywhere in the English provinces.
Quebec was the only province for which provisions for linguistic rights were written. By virtue of s.133, English or French could be used in the debates of the Legislature of Quebec [National Assembly] and in the courts of the province. English and French had to be used in the official records and journals of the Legislature and in the laws passed by the province.
S.134 stipulates that the Solicitor-General would be a member of the Cabinet in Quebec (this was not so in the other provinces). Presumably, a larger cabinet would afford greater opportunity to have minority groups in the province easily represented in the cabinet. In any case, a larger cabinet also met the approval of those who wished to endow the Government of Quebec with as much dignity and power as possible.
S.144 specifically empowered the Lieutenant-Governor of Quebec to create extra townships in Quebec. This would assure that the anglophone minority would be easily given the opportunity to settle and develop in the environment most suited to please them.
Thus, the Fathers of Confederation did not worry about what Christopher Dunkin called “the special exceptions made in her (Quebec) favor” (Confederation Debates p.509). They recognised the special role and character of Quebec and introduced clauses to protect and maintain that character. Since 1867, the special position of Quebec has been enlarged by several pieces of legislation. Provisions in the Supreme Court Act (1875) make it compulsory for 1/3 of the judges of the Court to come from Quebec; appeals on civil law cases from Quebec were somewhat restricted while they were not for the other provinces. In the post-Second World War period, as the trend for centralisation mounted, Quebec distinguished itself more and more. By 1952, Quebec was the only province to have refused the tax rental agreements. In 1954, it became the only province to collect income tax directly from the people while the other provinces collected theirs through the federal government. It was also the only province to refuse federal grants to universities.
In the 1960’s under the opting-out formula, Quebec pulled out of some 30 joint programmes while the other provinces stayed in. Some of the distinguishing features that have resulted are:
1) Quebec Pension Plan: Quebec has its own compulsory contributory pension plan while the other provinces all contribute to the Canada Pension Plan.
2) Family Allowances: The federal government pays uniform rates to all other provinces while in Quebec the federal rates are distributed differently and the province pays directly certain sums to the parents of children.
3) Quebec Housing Corporation: By virtue of an agreement reached in 1967 the role of the Central Mortgage and Housing Corporation has been reduced in Quebec to providing loans and subsidies. The task of implementing programs in housing (locating and planning of projects, finding personnel and upgrading construction) is assumed by the Quebec Housing Corporation.
Quebec was also very active in International affairs on a scale unparalleled by the other provinces. In the field of immigration, arrangements have been made between the governments of Quebec and Ottawa by which Quebec has a great deal to say about who immigrates to Quebec (agreements of 1975 and 1978).
Hence, overall, by the mid-1960’s, Quebec had enlarged considerably in the special status which it had been given in 1867. That special status developed as a result of the centralisation of the post-World War period when English Canadians generally supported an increase in the scope of activities of the federal government while French Canadians fought that trend and demanded to be excepted from centralising measures. Thus, the recent additions in Quebec’s special status are not made up of transfers of fields of jurisdiction from the federal government to the government of Quebec but rather exceptions to provincial powers being transferred to the federal government: all other provinces let the federal government occupy the field while Quebec did not.
Quebec had obvious socio-cultural reasons to demand and obtain a freedom of action which the other provinces, for reasons of their own, did not want. From these piecemeal and pragmatic beginnings, the theory of special status for Quebec came to be formulated in more concrete terms in the mid-1960’s: Quebec needed a special status if its government was to play fully its role in the development of the province. Both the governments of Jean Lesage and Daniel Johnson were committed to working toward a new constitution which would recognise more fully the special position of Quebec. Jean Lesage declared in December of 1965:
- Pour répondre aux voeux de notre population, nous cherchons à obtenir tous les pouvoirs nécessaires à Notre affirmation économique, sociale et politique. C’est là un objectif logique, sain et positif. Dans la mesure où d’autres provinces, pour des raisons tout à fait acceptables, n’ont pas besoin de se fixer le même objectif, et il semble bien que ce sera le cas- le Québec verra, par rapport à elles, son statut se différencier davantage.
The most forceful exposition of the necessity and justification of a special status for Quebec is to be found in an article written on June 30, 1967 by Claude Ryan then editor of Le Devoir, and later to become leader of the provincial Liberal Party and head of the no committee in the referendum of 1980 on sovereignty-association. On that occasion he wrote:
- Le texte actuel (B.N.A. Act) se prête mal à la réalisation harmonieuse des deux dynamismes fondamentaux qui sous-tendent tous les espoirs de survie du Canada en tant qu’entité politique distincte, à savoir le nationalisme anglo-canadien, qui tend à polariser ses aspirations autour de l’idée d’un gouvernement central fort, et le nationalisme canadien-français qui, sans être fermé sur le reste du Canada cherchera, du moins pour l’avenir prévisible, son principal point d’appui dans le gouvernement du Québec. Sous le régime actuel, les Canadiens français apparaissent aux yeux de leurs compatriotes anglo-canadiens, comme de dangereux empêcheurs de danser en rond. Les Canadiens anglais apparaissent, en retour, aux yeux des Candiens français comme des centralisateurs invétérés. Cette tension donne lieu à des confrontations incessantes qui s’accompagnent d’interminables querelles de droit et de procédure. Tout cela nuit à l’action. Bien des projets sont mis de côté, retardés indéfiniment, ou encore entrepris quand même au mécontentement de l’un ou l’autre des deux groupes.
Thus, the position of many in Quebec during the discussions on the new constitution from the late sixties on was that:
- Quebec was the political expression of the French Canadian culture and people
- Its government was to be empowered with specific responsibilities which the governments of the other provinces might not wish to exercise.
Several concrete proposals were made, over time, to suit these views; Quebec was to have full jurisdiction or a priority in the following sectors: family allowance, old age and contributory pension plans, social assistance, housing, bursaries to students, insurance and trust companies, urban and regional development, scientific research in universities, marriage and divorce, linguistic policy, organisation of tribunals; in financial matters, the spending power of the federal government was to be limited and certain fiscal powers were to be transferred to the provincial governments. To a large degree, many of these fields of jurisdiction were already in provincial hands through opting out or other arrangements; what many proposed in Quebec was that these arrangements be formalised in a new constitution. There were also demands for greater provincial roles in immigration and international affairs, as well as proposals for reform of the Senate and Supreme Court along binational lines. Later proposals would also transfer jurisdiction over cable television to the provinces. There is no doubt that these propositions would have gone a long way to meet the new expectations of the people of Quebec and, had they been implemented, they would have resolved the constitutional dilemma from the Quebec point of view. But, despite some favourable support in some corners, most of English Canada was not prepared to go as far to resolve the constitutional problems. It was this failure to fully recognise the special position of Quebec and to shape the constitution accordingly, which fuelled nationalism in Quebec and ultimately led to the election of the Parti Québécois in 1976.
The new constitution of 1982, and the Charter of Rights, failed to address completely any of the proposals made by Quebec in the twenty years that preceded them. Only article 59, dealing with rights to English schools in Quebec, concerned itself with subject matter that touched on Quebec. If we add the lack of recognition of a right of veto on constitutional matters to Quebec to the disregard of the demand for decentralisation and the rejection of a special status, one sees why the province refused to sign the constitution. There could not have been a clearer rejection of the distinctiveness of Quebec, and thus of its need of special clauses, than the rejection of a right of veto to Quebec. While Trudeau blamed the failure of recognition of a veto on Levesque, who dropped this demand against some other protection, it is clear that the other provinces were not prepared to recognise a veto to Quebec and that Trudeau found the idea of a need for “special protection” for Quebec very distasteful; this view he expressed on many occasions.
The last attempts to incorporate elements of special status, albeit in a reduced form, were made in the Meech Lake Accord (1987) and in the Charlottetown Accord (1992). In both instances, the clauses aimed at recognizing the distinctiveness of Quebec, and thus the limited recognition of a special status, came sharply under attack and justified the rejection of both accords in English speaking Canada. Such rejection, rooted in a wide range of conflicting sentiments and views from outside of Quebec, including an under current of anti Quebec feelings, was legitimised by the virulent denunciation of these Accords by Pierre Trudeau. One could hardly claim that the opposition to the Meech Lake Accord was rooted in intolerance when Pierre Trudeau and Jean Chrétien were opposed to it! The failure of Meech altered perceptibly attitudes in Quebec and led to more radical demands, as illustrated by the Allaire Report. Trudeau, and the centralists that support his vision of Canada, forced the province into increasing polarization between separatists and status quo federalists. The province moved away from a position of compromise which the proposals of special status had always represented; this is why the people of Quebec narrowly rejected the Charlottetown Accord at the time of the referendum on the document.
Thus, special status federalism now appears dead: it neither receives the support it would require in the English-speaking provinces, increasingly focused, as they are, on the principle of “equality” as a corner stone of Canadian federalism, nor from large parts of Quebec determined more and more to claim full sovereignty as the only acceptable solution to the dilemma of cultural survival and development. It is almost as if the country has a death wish…
Readings in Quebec History – Federalism
By: Claude Bélanger
Source: Marianopolis College
Department of History,
Federalism is a system of government where two levels of government exist, each sovereign in its sphere of jurisdiction. The federal or central level takes care of all of those things that are common to the whole of the country while the other level of government (provincial, state or canton) has jurisdiction over those things that are of local concern. Federalism is to be contrasted to the other two types of political systems: the unitary (sometimes called legislative union in Canada) and confederal systems. The unitary system is characterised by the fact that sovereignty resides exclusively with the central government and that local governments, when they exist, are entirely subordinated to the central authority. In the confederal system, sovereignty entirely resides with the member-states and the central government that has been created is subordinated to them. In a confederation, because the member-states have retained the entirety of their sovereignty, they may pull out of the union at any time. The federal system borrows some features from the other two systems: from the unitary system it adopts the idea that the central government must have some sovereign powers while it retains from the confederal system the principle that the local governments have preserved for themselves some sovereign powers. This is why the main feature of federalism is the distribution of sovereignty between two levels of government in such a way that neither level is entirely subordinated to the other.
Federalism is usually adopted in countries that display differences of climate, geography, religion, language, culture and economies; it is especially suited for multinational and multicultural states that wish to preserve these characteristics. The system is also found in countries that are too large for a single government to handle. Essentially, the federal arrangement, or compact, is the result of conflicting pressures among its constituting parts. On the one hand, groups have found good reasons to join with others and to form with them a new political entity; this is often done for defence (they may fear some common enemy), or for economic reasons, as joining with others may enhance their hopes of prosperity; sometimes, there has been in the past common experience of union together and, always, there are some commonly shared values. On the other hand, the same groups who wish to unite find equally good reasons to remain apart perhaps because they have had a long heritage of self-government that they do not wish to forsake, or because they take pride in their group distinctiveness and wish to retain their individuality. Federalism is so designed as to reconcile these conflicting feelings. The groups will agree to come together on those things that they deem to be in their mutual interest, and entrust to the central government power to act in all such cases while, at the same time, they will continue to exist separately and retain for themselves full power over the things that they wish to continue to control and which are usually related to their individuality.
This is why federalism has sometimes been described, in a broad sense, as an organisational system that unites separate groups within a single political system so as to permit each group to maintain its fundamental political integrity. Thus, essentially, the federal system is adopted where it is felt that the preservation of the individuality and separateness of the constituent parts is as important as the preservation of the nation as a whole. In some circumstances, it might even be argued that the preservation of the nation as a whole is dependent on the maintenance of the constituent parts: one would not exist if the other was not guaranteed.
Thus, federalism is the result of centralising and decentralising forces which are at play at the time of the formation of the union and which continue to affect the union long after the system has been created. When the reasons to come together are extremely powerful, the tendency is to entrust the central government with large and extensive powers, indeed to make it the “main” government. When the reasons to remain apart are stronger than the reasons to come together, the result will be that the local governments will be entrusted with the largest powers. Each federation finds its balance somewhere along the line and the resulting distribution of power between the two levels of government is witness to the respective strength of the centralising and decentralising forces at the time of the union. So long as some sovereignty is deposited in each level of government, then we are dealing with a federal system.
In federations there is no standard distribution of powers since each country must find its own balance between the centralising and decentralising forces and, in this respect, no two countries are quite alike. Thus, comparisons between the distribution of powers in federal systems of different countries are useless to determine their federal nature and can only be used to measure more adequately whether one’s federal system is more centralist than others are. Yet, notwithstanding the above, there remains a certain pattern in the distribution of powers in most federations. At a minimum, the central government will receive the external signs of sovereignty (foreign affairs, treaties and defence) and economic powers of an international or interprovincial nature; each level is also given an autonomous tax base. The rest is subjected to a process of bargaining and power allocation whose ultimate outcome is determined by the respective strength of the centralising and decentralising forces at the time of the union.
In Canada’s case, federalism was, without a doubt, the result of pressures from Quebec, and to a lesser extent of the Maritime colonies. Quebec wished to share with the other colonies in the development and the resources of the continent; the province also desired to gain access to the market of the other provinces and to achieve the security that a larger union would provide for all. Quebecers were not unmoved by visions of creating, in the northern half of the continent, a vast dominion which they would share with their anglophone compatriots. But, at the same time, Quebec greatly feared the minority position in which a unitary state would have placed it. The people of Quebec took pride in their separateness, in their sense of nationality. They wished to preserve their faith, their language, their laws and their culture, all essential constituting elements of their distinctiveness, of their existence as a separate people; above anything else, these components they wished to preserve and to safeguard in the future. Ultimately, they thought that their separate or distinct existence would be best assured by joining together with the other provinces in a union that recognised and supported their autonomy. For better or for worse, they believed that the survival of French Canada was linked to the creation of a federal system, that as long as Canada would continue to exist that French Canada would also continue to survive.
The federal system was thus adopted as the only acceptable solution despite the fact that many of the Fathers of Confederation (J. A. Macdonald and G. Brown for example) did not believe the system practicable and thus opposed it and would have preferred a unitary state. The example of the American Civil War, which struck at the heart of the problems inherent in federalism, led the Fathers of Confederation to adopt a particularly centralised form of federalism, leading one expert in federal governments, K. C. Wheare, to call the Canadian system “quasi-federal”.
It has been said that federalism if applied properly, is incompatible with dictatorship as dictatorship implies the absolute control of power by one somewhere while federalism diffuses power between various units. Federalism also denies the application of simple majority rule since the purpose of federations is to recognise that the rights of small units have to be acknowledged and respected. In essence, by creating local units, and empowering them with sovereignty, the federal system creates a majority out of what would have been otherwise a minority; such a group can adopt for itself the legislation that it desires to assure its own survival and development. The federal system is difficult and costly to operate; it frequently leads to tension but provides, as well, the mechanism to resolve these. It is a system particularly suited for large and diverse countries where cultural, religious and linguistic differences are pronounced. It makes of peoples, who might otherwise be strangers, if not enemies, partners in development and allows them to co-exist in peace while learning from one another.
Main features of federalism
The following are the main features of federalism:
1.Two levels of government created and protected by the Constitution, with sovereignty stemming neither from above, nor from below, but distributed between the two, in some fashion by the Constitution.
2.Neither level of government is entirely subordinated to the other; each has powers and these are guaranteed by the Constitution.
3.Supremacy rests in the Constitution. Formal changes in the relative position, or powers, of each level of government cannot be achieved by one level alone, but are subjected to some form of mutual consent; the method for effecting such changes (amendments) is outlined in the Constitution.
4.Both levels of government enact legislation affecting the same citizens; the central government enact laws in certain fields for the whole (or possibly part) of the country; the provincial government enacts legislation on other subjects for the residents of their respective provinces.
5.The legislation of the provincial government can only apply to the people of their province. Provincial law does not have the power of extraterritoriality.
6.Overlapping of jurisdiction (so-called “grey areas”) is inevitable within a federal system. When such overlapping exists, there is a need to determine, in the Constitution, which of the two levels of legislation shall prevail if the laws are found in contradiction.
7.Federal constitutions must be, at least, partly written so that the allocation of fields of jurisdiction is made clear and guaranteed. Such constitutions are also said to be rigid since, for the most part, it would require more than a simple majority of the legislatures to change it.
8.Jurisdictional disputes between the two levels of government are decided upon formally by a Supreme or Constitutional court. Such a Court finds its existence guaranteed in the Constitution. Ordinarily, such a court is also beyond the control of any one level of government.
9.Disputes may also be resolved by bypassing the court system if the two levels of government so desire; the issues can be resolved politically or administratively through processes and institutions of intergovernmental co-operation.
10.The interests of the member-states in a federation are not only protected by a formal distribution of power, guaranteed by the constitution, but, as well, by some form of local representation in the institutions of the central government. In Canada, this is done in the Senate and, to a lesser extent, in the distribution of federal cabinet positions. Where local interest is not well represented in the institutions and processes of the central government, the role of the provincial governments, to carry out that task, is that much more emphasised and important.
11.Each level of government is not only allocated a list of fields of jurisdiction but, as well, given autonomous revenue sources to finance its operations. A government without revenues of its own, would not really be a sovereign entity.
12.Each of the two levels of government has substantially complete governing institutions with power to modify these unilaterally.
13.Federal countries, especially lately, have developed elaborate structures and devices of intergovernmental co-operation, blurring increasingly the division of powers that should separate them. In the process they have multiplied “grey areas” and rendered it difficult for citizens to determine who is responsible precisely for what… Such intergovernmental bodies, frequently working in the background, away from the scrutiny of the public, have lessened the control which citizens wish to have over the system.
14.Some federations, such as Canada, have developed, through the existence of the central government, an elaborate system through which the wealthy regions contribute substantially for the support of the less fortunate parts of the country. In Canada’s case, this is done through the equalization payments and shared costs programmes.
Comparative Federal Models – Belgium and Switzerland
By: Siva Bhaskaradas
Source: TamilCanadian – Decemer 12, 2002
Both the Government of Sri Lanka (GOSL) and the Liberation of Tigers of Tamil Eelam (LTTE) are to be congratulated for their genuine commitment to the peace process. Undoubtedly the positive outcome of the three round of peace talks between the two parties will ease the mutual hostility and suspicion between the two major communities and gradually develop the mutual trust between them. The LTTE has expressed its willingness to enter into mainstream politics and to allow other political parties to participate in the electoral process. The LTTE has also shown its readiness to accept a federal structure within a united Sri Lanka founded on the principle of internal self-determination.
It is noteworthy that the emergence of Tamil nationalism as a powerful force in Sri Lanka in the past two decades has been primarily attributable to Sri Lanka’s majoritarian democracy since independence in 1948. Under the majoritarian democracy, the Tamils have been systematically denied of access to power sharing and this has led them to fight for an independent Tamil Eelam. The main features of the Sri Lankan majoritarian democracy are as follows:
- Continuous adoption of unitary constitutions for a non-homogeneous society,
- Implementation of electoral system of ‘first past the post’ until 1978,
- Operation of asymmetrical bicameralism until early 1970s (and the senate had no more powers other than to delay a legislation),
- Adoption of unicameralism since 1972,
- Keeping political control with the two main political parties namely the United National Party and the Sri Lanka Freedom Party,
- Providing importance to sovereignty of the parliament in the 1972 and 1978 constitutions and
- Provision of a majoritarian referendum in the 1978 constitution (not practised yet).
Sri Lanka needs to consider a solution to her ethnic problem based on federal principles. Federalism, which is non-majoritarian in character, is a stepping-stone to contain secession. However, the outcome of the third round of peace talks between the two parties is the acceptance of the political framework of federalism.
- Meaning of Federalism
A federal structure has two systems of governments – the centre and the regions – both exist on the basis of equality, both act directly on the people within their own spheres of authority and neither has powers to encroach on the authority of the other. The sovereignty in a federal system is divided between the centre and the federated regions. Authors for federalism identify the following main features:
- A written constitution that spells out the division of powers of the two systems of government – the centre and the regions.
- A bicameral parliament in which one chamber represents the people at large and the other the constituent regions of the federation. The chamber that represents the constituent regions of the federation has an equal number of members per region regardless of the size of the region.
- The amendment to the federal constitution requires the consent of the regions, thus removing the monopoly of the central government in the amendment process.
- Federated regions are given authority to write their own constitutions within their allotted powers and to alter their constitutions unilaterally.
- Federated regions have permanent and guaranteed autonomy.
- Regional governments’ share of powers is relatively large in federations in comparison with that of regional governments in unitary states.
- Fear of Secession
Most of the Sinhala politicians and other Sri Lankan establishments are very much scared of the word ‘federalism’ because they have a fear that federalism eventually creates two new sovereign states. It is not true. Federalism, in fact, in a democratic set-up preserves the political unity of the country and further the co-existence of the diverse groups in one and the same state. However, federalism is incompatible with totalitarian regimes. Canada and Switzerland are the old, prosperous and successful federations while India has been able to maintain the federation intact for the past 55 years. Although Canada and India have separatist sentiments in some parts of their countries, these countries are able to sustain the federation because of their democracy. Canada and India are often referred to as centripetal federations.
The creation of Bangladesh and Eriteria by secession, the dissolutions of the Soviet Union and Yugoslavia can cause concerns in the minds of Sinhalese regarding federation. All these separations occurred in the former federal countries Pakistan, Soviet Union, and Yugoslavia. Former Ethiopia was not a federal country at the time of separation. The break-up of Pakistan, Ethiopia, Soviet Union, and Yugoslavia had nothing to do with the federal structure. These countries were broken apart mainly due to the following reasons:
- These governments were technically undemocratic (meaning Pakistan and Ethiopia were under a military dictatorship, and the Soviet Union and Yugoslavia were under one-party rule). As a result, there had been lack of credible democratic institutions that could have put together such diverse populations.
- The dominance of West Pakistanis against East Pakistanis, Russians against other ethnic republics and Serbians against other ethnic groups led the other groups to assert their own nationalism.
It is interesting to note that Eriteria as an autonomous unit was federated with Ethiopia under the United Nations declaration in 1952. This federal arrangement was not honoured by the government of the late Emperor Haile Selassie due to his absolutism and his lack of interest in power sharing This resulted in the commencement of armed resistance by the Eriterian people in 1961. The Eriterian People’s Liberation Front (EPLF) was the main resistance organization. The 1974 revolution that overthrew the feudal monarchy was a turning point and this revolution eventually created a dictator General Menghistu. Ethiopian Military government faced rebellions particularly in the Eriterian and Tigrean regions in 1980s. In 1991 a rebellion group consisting of Eriterian, Tigrean and other ethnic forces defeated Gen. Menghistu and his army. The rebels agreed that Eriteria would become an independent nation. Eriterian people organised a plebiscite to separate from Ethiopia in 1993 under international supervision and won the plebiscite in favour of separation.
With regard to Bangladesh, Mujibur Rahman’s Awami League fought the December 1970 election on an autonomy platform based on his famous six-point program in the former East Pakistan. His party polled 72.6% of the votes and won 165 out of 167 seats in East Pakistan. His party also had a clear majority in the parliament of Pakistan as a whole. Pakistan military authorities created the problem for themselves by not handing over the power to Rahman’s Awami League. Indian invasion on humanitarian grounds liberated Bangladesh people from Pakistan.
These countries even after losing their members have adopted again the federal constitutions for their remaining ethnic members. The 1994 Ethiopian constitution, remarkably a sophisticated document and surely a big radical change in the Ethiopian constitutional tradition, allows that every nation, nationality, and people in Ethiopia has an unconditional right to self-determination including the right to secession. The right to secession is in contradiction with the very idea of a federal constitution and this right is a confederal feature. By granting this right Ethiopians have succeeded in bringing the Somalis of the Ogaden region and the Tigrean people to stay within Ethiopia. This clearly demonstrates the fact that federal solution is appropriate for diverse population.
- Federal Executive
First of all it is important to compare the executive system in federal countries. The most successive federations in the world are the USA, Canada, Switzerland and Australia. The executive power vested at the national or federal level of these countries varies.
4.1 Parliamentary System:
Traditionally this system comes from the British. In this system, the leader of the winning party becomes the Prime Minister and choses the members of his cabinet. The Prime Minister and the members of his cabinet are members of Parliament. Conventionally parliamentary system embodies a fusion of powers, and presidential system embodies a separation of powers. The separation of powers is inevitably represented as a separation among three branches of a government namely executive, legislative and judicial. One weakness of the parliamentary system is that its security of tenure is dependant on the support of the Parliament. A government can fall before the end of its term if a no-confidence motion is passed in parliament. In Australia and Canada, British system has been followed.
4.2 Presidential system:
In the USA, the executive President is elected by the popular vote and chooses the members of his cabinet. It is noted that the President and members of his cabinet do not sit in the Congress. This model departed decisively from the British model (where the executives are drawn from Parliament) and it addressed the separation of powers of the three branches of a government namely executive, legislative and judicial functions. The security of tenure is guaranteed.
4.3 Collegiate Executive:
This is also referred to as plural executive in which a number of members from two or more main political parties is elected by the parliament or people. Switzerland is an example of this model, which addresses the separation of powers, and the government can continue in office even if a government bill is defeated in parliament.
- Comparative Analysis
The comparative approach is important in order to understand the political systems of any country. That approach forces anyone to look at a particular system objectively. It enables anyone to find out similarities or differences in institutions and processes. The comparative approach is the better way of understanding of how countries with different histories, different ethnic composition and different social problems have approached the creation of institutions and processes of government to suit them. The author intends to analyse the federal systems of Belgium and Switzerland because they are small in size, consist of a few communities and represent a consensus model.
Belgium has three communities namely – the Flemish speaking community (Dutch), the French speaking community and the German speaking community, and three regions – Flanders, Walloon and Brussels. Germans live in east part of Wallon and Brussels is a bilingual region. The linguistic proportion of the Flemish, the French and the German communities are about 60%, 40% and less than 1% respectively. The official languages are Dutch, French, and German. Belgium has a parliamentary executive system.
Belgium has seen four constitutional reforms of 1970, 1980, 1988-89 and 1993 and these progressive and peaceful reforms have transformed the country from a unitarian state into a federal state. The 1970 reforms constitutionally recognised three cultural communities based on language – a Flemish, a French and a German. The 1993 constitutional revision has furthered devolution into a federation and has left the Belgian federal government responsible for little more than finance, foreign policy, justice and defence. Belgium has three levels of government – federal, regional and linguistic community. Belgium is a good example of territorial and non-territorial federalism. The regional councils serve as territorial federation, and the community councils serve as non-territorial federalism since some members are elected to the Flemish and French community councils from Brussels region.
Although the federal executive power belongs to the king, he exercises the power through the Prime Minister and his council of ministers. The Belgian constitution requires formally that the executive include ministers of the Dutch speaking and the French speaking communities. This formal rule came into existence in 1970. Art.99 of the federal constitution specifies that the Council of Ministers includes fifteen members at most. With the possible exception of the Prime Minister, the Council of Ministers includes as many French-speaking members as Dutch-speaking members. This means that the cabinet contains an equal number of French and Flemish speaking ministers, requiring the government to have a coalition. The Prime Minister can be from any community. Practically, the political parties are divided along linguistic lines.
The federal parliament consists of two chambers, the chamber of representatives and the senate. The members of the federal parliament are elected for a period of four years. The election is on the basis of proportional representation. The chamber of representatives has 150 deputies elected by the population at large. The senate has 71 members representing the communities and regions and are divided into three categories:
- 40 directly-elected senators (25 from the Dutch-speaking electoral college and 15 from the French-speaking electoral college);
- 21 community senators (10 from the Flemish Community, 10 from the French Community and 1 from the German-speaking Community), appointed by the legislative assemblies of the three Communities;
- 10 co-opted senators, six of whom appointed by the Dutch-speaking linguistic group and four by the French-speaking linguistic group.
The two chambers no longer have the same powers, but in some fields the two houses have equal powers. These fields are: the revision of the Constitution, the fundamental laws concerning the Belgian state structure, the approval of international treaties, laws relating to the Council of State, proposals of candidates for the Court of Arbitration, the Court of Cassation and the Council of State.
The positions of the Flemish and Dutch communities in both houses are approximately according to the population proportion. Accordingly, the Flemish community gets about 60% representation in both houses. In accordance with the constitutional formula, the Dutch gets 41 senators, the French gets 29 and the German gets 1 in the senate. A true federation would have distributed equal number of members in the senate between the Dutch and French communities. The minority veto is still possible in the senate because of the constitutional requirement of the qualified two-third majority for amending the constitution and the Dutch do not have 48 members in the senate.
The Regions and Communities each have their own parliament. The three regions and the three linguistic groups are represented by the following directly elected councils:
- A combined council for the Flanders Regional Council and the Flemish Community Council. This combined council has members from the Flanders regions and some members from the Dutch-language group of the Brussels-Capital Council.
- The Council of the Brussels-Capital Region consists of members from the Dutch-language group and the French-language group since the region is bilingual.
- The Council of the Walloon Region consists of members from the Waloon region.
- The Council of the French Community consists of members from the Walloon Region Council plus some members from the French-language group of the Brussels-Capital Council.
- The German Community Council has members from the German-speaking Community.
The constitution can be amended by two-third majority in both houses of the parliament. Article 4 provides that the limits of the four linguistic regions can only be changed or modified by a law adopted by majority vote in each linguistic group in each Chamber, on the condition that the majority of the members of each group are gathered together and from the moment that the total of affirmative votes given by the two linguistic groups is equal to at least two-thirds of the votes expressed. In other words, this must be passed with a two-thirds majority including the concurrent majority of each linguistic group.Belgium particularly in their reform process looked for the idea of government by grand coalition to protect the minority Walloon region. This grand coalition has been in existence in Belgium since 1970 and the executive has been equally divided except for the Prime Minister. Their reforms established executive power sharing and linguistic autonomy firstly under the unitary state but the reforms did not satisfy the aspirations of the communities. This finally drove them to go for a federation. This clearly exhibits that any power sharing deal between diverse groups in a unitary state is always under pressure to go for a federation.
Switzerland has three major communities namely – the Germans, the French and the Italians. The linguistic proportions of the above are 63.6%, 19.2% and 7.6% respectively. The official languages are German, French, Italian and Romansh. Swiss has twenty-six cantons – twenty full cantons and six half-cantons.
The Swiss federal constitution was adopted in 1848 and it was revised substantially in 1874. The 1874 constitution has been replaced by a new constitution, which has been formally adopted by referendum on 18 April 1999. The new constitution has not changed the structure of the Swiss federation, but it solidifies the framework of human rights and fundamental freedoms.
Switzerland has a hybrid form of government. Switzerland had not followed the USA model with regard to the election of the President because they felt that the US President had enormous powers. In Switzerland, executive power is vested in a federal council consisting of seven members. The seven members are elected to four years term by the federal assembly. The Federal Assembly elects one of the seven members as President and another as Vice-President for a term of one year. The constitution prohibits their re-election for the following year. The President is not eligible to serve as Vice-President for the following year. The federal council operates as a collective body in making decisions.
All the governments in Switzerland since 1848 have been coalition governments. The ruling federal council is selected from the main political parties – Social Democrats, Radical Free Democrats, Christian Democrats and Swiss Peoples Party. The coalition government is based on the ‘magic formula’ of 2:2:2:1 established in 1959. This political arrangement is strictly followed even though it is not a formal requirement. The major communities the Germans, the French and the Italians are represented in the federal council.
Switzerland’s bicameralism is a true and full one because both houses enjoy equal status in passing legislation. The National Council is composed of 200 members elected directly by the people according to the system of proportional representation. Each canton is an electoral district. The Council of states consists of 46 delegates and members of this council are elected by their respective cantons, two from each full canton and one from each half canton. The elections of the council of states are determined by the cantons. In some cantons, members are elected by the people and in others, members are elected by the cantons’ legislatures.
Direct democracy is encouraged through a referendum. Amendments to the constitution are to be approved in a referendum by a majority of all the electors voting and by a majority of the electors voting in a majority of the cantons. This special majority is required for the decision to join collective security organization or international bodies. It is also possible for 100,000 Swiss Citizens to initiate a revision of the constitution. Sovereign citizens can challenge the validity of the federal law. Either 50,000 citizens entitled to vote or of eight cantons demand a referendum on a law passed by the federal parliament so that the referendum can either confirm its constitutional validity or annul it. A simple majority is enough for this purpose and the majority of cantons is not required.
The federal court is the highest federal authority. The federal court deals with disputes between the Federation and the cantons and between the cantons. In addition, it deals with disputes of international law, international law, and cantonal constitutional rights. However, the acts of the federal assembly and the federal council cannot be contested before the federal court. According to article 191(b) the cantons establish judicial authorities for the adjudication of civil law and public law disputes as well as criminal cases.The organization of the judiciary, civil and criminal justice, and execution of criminal penalties and measures are matters for the cantons in accordance with articles 122(2) and 123(2). The cantons have their own cantonal courts and they exercise jurisdiction to apply both the laws of the federal government and the laws of the cantons.
They have 26 cantons because their aspirations of self-government have been historically attached to cantons and the cantons are not willing to merge with any other cantons of the same linguistic group. For example, Jura (French-speaking), which was a part of Canton Bern (German), became a new canton in 1979 and did not have a desire to join with the rest of the French-speaking cantons. Swiss is one of the models of exceptional federation.
Swiss always has a federal tradition while Belgium has not. Swiss people organised themselves as a federal people after centuries of existing as a confederation. Although both countries operate a consensus model, Belgium has formally adopted the consensus model. Both federations have satisfied the four principles – two primary principles (grand coalition and segmental autonomy) and two secondary principles (proportionality and minority veto) formulated by Arend Lijphart. Minority veto in Belgium is exercised through the Senate. As mentioned earlier, all changes in the Swiss constitution must be approved in a referendum by a majority of all votes cast and by a majority of cantons. This gives special protection to the smaller cantons and they can block any amendment if they are united. This is generally some sort of veto.
The amendment process with regard to Belgium and Switzerland is entirely different. Usually in a federal system an amendment to the constitution is authorised by (i) resolution of both Houses of the federal parliament and (ii) ratification by a majority of component regions. For example, the amendment of the Constitution of the USA is to be approved by a majority of two-thirds of the members of both Houses of the Congress. The amendment is then to be ratified by three-fourths of the legislatures of the States (Article 5). The amendment to the Constitution of Canada is now governed by Section 38 of the Constitution Act 1982. The amendment is authorised by resolution of both Houses and ratification by resolution of the Legislative Assemblies of at least two-thirds of the Provinces having at least fifty percent of the population of all the provinces according to the latest general census. Article 368 of the Indian Constitution prescribes approval by a majority of the total membership of both Houses of Parliament and no less than two-thirds of the members present and voting. If, however, the amendment is concerned with the federal distribution of powers, it must be also ratified by no less than one half of the States.
A fully pledged federation in Sri Lanka will permit Sinhalese, Tamils, Muslims and other communities to live in peace. This will ensure the unity and territorial integrity of Sri Lanka.
The Swiss cantonal system
A model democracy
by Frances Kendal
The ongoing debate “If the People lead, the Leaders will follow” is an attempt at evolving a suitable political structure for Sri Lanka, which is people based. This article is a contribution to this debate from a South African political scientist and activist who has looked at the Swiss cantonal system.
The concepts of devolution of power, local autonomy, and participatory democracy have produced the world’s most peaceful and prosperous country. Of course, Switzerland, with its compulsory military service, state-controlled monetary system, railroad and telephone services, and taxation, is not a pure libertarian society — but for those interested in reining in out-of-control governments in other parts of the world, there are large parts of the Swiss cantonal system that is worthy of emulation.
The word “democracy” is derived from the Greek words for people (demos) and power (kratos). Inherent in the concept is the idea that ordinary people should keep control of the decisions that affect their lives. In an ideal democracy, the power of those who govern is limited by safeguards that ensure that citizens can prevent their elected leaders from abusing their powers.
Switzerland is considered by many to be the most democratic country in the world. It is also one of the world’s most successful nations in economic terms. The Swiss people have the highest per-capita incomes in the world, and Switzerland is consistently rated among the top ten nations in terms of quality of life.
The key to Swiss success is not to be found in natural resources (which are in extremely short supply); nor does it lie in the temperament of its 6.4 million people, who are essentially no different from the Germans, Italians and French in the remainder of Europe. It lies rather in Switzerland’s political institutions, which ensure that ordinary citizens are involved in political decision-making, and that no one interest group is able to benefit unduly at the expense of another.
A Three-tier Federation
Switzerland is small — about one quarter the size of the US State of Ohio — and it is divided into 26 areas called cantons. The cantons are comprised of approximately 3000 communes. A central or federal government links the cantons into one unified country, but this central government controls only those affairs which are of interest to all the cantons. These matters of common interest include foreign policy, national defence, federal railways and the mint. All other issues — education, labour, economic and welfare policies and so on — are determined by the governments of the cantons and communes. Each canton has its own parliament and constitution and they differ substantially from one another. The communes, which vary in size from a few hundred to more than a million people, also have their own legislative and executive councils. The cantonal and communal governments are elected by the citizens resident in their areas of jurisdiction.
Advantages of decentralization
Embraces Diversity. One important reason for this de-centralization of power in Switzerland is that, unlike most European countries, Switzerland is made up of several different major ethnic groups — Germans, French, Italians, and Rhaeto-Romansch. Over the centuries, whenever conflicts have arisen between these language groups, and between Catholics and Protestants, the Swiss have resolved the conflict by allowing each of the warring groups to govern themselves. Thus single cantons have divided into half-cantons, new cantons have been formed and border communes have opted to leave one canton to join another. In this way the Swiss have developed a system which permits people of different languages, cultures, religions and traditions to live together in peace and harmony. This makes the Swiss system particularly well suited to ethnically-divided countries.
Maximizes Competition Among Policies. Because so many decisions are made at the local level, the Swiss are closely involved with the laws and regulations which affect their lives — and because each canton is different, they are also able to see for themselves which policies work best. For example, one canton might have high taxes and expensive welfare programs, while another might opt for low taxes and private charity. Each Swiss citizen can then decide which policy suits him best and “vote with his feet” by moving to the canton which he finds the most attractive. The result is that good policies tend to drive out bad.
The national parliament consists of two houses: the popular house, which is elected by proportional representation under a system of free lists which allows all shades of political opinion to be expressed; and the Council of States, which has two representatives from each canton and one from each half-canton, is elected in most cases by a simple majority.
Four political parties dominate the central government. None has a clear majority in either house and they are all represented in the cabinet (the national executive). Instead of the adversarial system common to many democracies, Swiss political groups have to work together to achieve consensus. A different president is elected by members of the central government every year.
The federal government’s jurisdiction is limited to those areas specified in the constitution. Once approved by both houses, new legislation is also subject to approval by the people in an optional referendum. The citizens have a six-month period during which a referendum can be called by any individual or group able to obtain 50,000 signatures on a petition. If the proposed legislation is rejected by a simple majority vote, it falls away.
Should the central government wish to pass legislation regarding matters not allowed by the constitution, a constitutional amendment is required. Consequently, much new legislation takes the form of amendments that can be proposed by the central government or by popular initiative. Any amendment proposed by the government must be approved by a simple majority of the people in a national referendum. All amendments require the approval of voters in a majority of the cantons.
Over the years, changes to the constitution have gradually increased the jurisdiction of the Swiss federal government. Of the 216 amendments proposed between 1874 and 1985, 111 were accepted by the voters and 105 were rejected. Of the 111 which were approved, eight were popular initiatives and 14 were counter-proposals (moderate variations on popular initiatives put together by parliament). In this way the Swiss have developed a body of legislation which suits their special needs and enjoys popular support. Public-interest groups play an important role at the national level because they are able to launch referenda to block legislation they oppose. Consequently the cabinet lobbies the interest groups instead of interest groups lobbying the government, as happens in most countries. This is one important way in which the people, and not the politicians control government in Switzerland.
The Swiss federal government has the sole right to coin money, issue bank notes, determine the monetary system and regulate exchange controls. This monopoly is exercised by the Swiss National Bank, which is more or less independent of state interference. It is opposed to financing public deficits, and maintains a slow rate of growth in the money supply. By federal law, bank notes issued must be covered by gold and short-term securities.
Taxation and Spending
The federal government, cantons and communities all levy their own taxes. Each level collects about one-third of total government revenues, which in all comprise approximately 26% of GNP. Most taxes are direct and low. The average Swiss citizen pays about 16% of his income in taxes, and average company taxes are about 20% of profits. Switzerland’s national debt and inflation rate are low. Total government spending for all three levels has averaged only 22.6% of GNP since 1946, yet expenditure on welfare and education per capita is high. This is because government revenues are spent effectively rather than wasted on a bloated bureaucracy.
Switzerland has an efficient, well-equipped army to defend it from foreign invasion. Military service is universal and compulsory, and those who are unfit for combat duty serve in the most comprehensive civil defense program in Europe.
Army units are formed by men from the same canton, but defense is financed and controlled by the federal government. However, as with all other aspects of Swiss government, the ultimate control of the army rests with the people. Recently an initiative was launched to scrap the army. Although the majority voted in favour of keeping the army, around 45% supported the initiative, sending out a strong message that radical reforms were required.
Public representatives frequently abuse or overstep their mandates if there are no limits to their power. That is why the success of constitutional democracies depends on the existence of checks and balances. The Swiss experience indicates that possibly the most effective check of all is a thorough-going system of direct democracy.
The popular vote reflects public opinion accurately, ensures that elected representatives remain accountable, reduces the importance of party politics, focuses attention on specific issues, acts as a barometer of controversy, and encourages politicians to be fellow participants in the law-making process.
In Switzerland, not only is the right to challenge legislation and launch popular initiatives entrenched at the national level, but all cantons and large communes include the right to referendums and initiatives in their constitutions. Important decisions in small communes are commonly made by the citizens themselves at public meetings.
Direct democracy takes two main forms: the referendum is the process whereby the people accept or reject new laws, and the initiative is the process by which citizens can themselves propose new measures. There are two types of referendum in common use: the obligatory referendum which must be held on all proposed constitutional amendments, and the optional referendum which permits new laws to be put to the popular vote provided a number of citizens sign a petition requesting the vote. Any group that wishes to launch an initiative has a specified period of time in which to collect the requisite number of signatures.
Voting in Switzerland generally takes place at least four times a year, usually on Sundays. Voter turnout averages 35% but varies greatly, depending on the issue. Decisions made by popular ballot may not be overruled by the courts.
Good government is achieved when rulers are made accountable — and accountability is assured when ordinary citizens can participate in decisions, remove elected representatives who abuse their mandate, and repeal unpopular laws.
The Swiss system has served the ethnically diverse people of that country well for over 700 years. The rest of the world could learn from the example set in this mountain country and adopt similar systems of citizen-based government.
Frances Kendall, was formally nominated along with her husband, Leon Louw, for the Nobel Peace Prize in 1988, 1989, and 1991 for their work to end Apartheid and defuse racial conflict in South Africa. She is the author of “Heart of the Nation”, “Super Parents, Super Children”, and “The SeX-Y Factor”. She is co-author, with Leon Louw, of “South Africa: The Solution” and “Let the People Govern,” which studied the Swiss system. She is a former member of the Johannesburg City Council. She is a member of the International Society for Individual Liberty.
Federalism and Tamil separatism
by Kamalika Pieris
In the 1920s and 1930s, during the British occupation of Ceylon, politicians toyed with the idea of ‘federalism’. The Kandyans in 1925 asked for a federal state all of themselves. This is historically the first request for a federal state in Sri Lanka. They abandoned this idea some time later. In 1926, S. W. R. D. Bandaranaike also examined the possibility of a federal structure for Ceylon. He gave a speech about it, and also sent some letters to the “Morning Leader” newspaper. James T. Rutnam, among others shot down the idea. (K. M. de Silva, “Devolution in Sri Lanka: S. W. R. D. Bandaranaike and the debate on power sharing” 21-48). In 1930 the Donoughmore Commission and in 1938 Leonard Woolf, then Government Agent, Ceylon briefly considered federalism. Why did all these people consider federalism? Because they had all fallen for the false notion of separate “races” in Sri Lanka — Sinhalese, Tamils, Muslims, subdivided into Kandyans and Low country and so on. These brief episodes of ‘Federalism” are now resurrected to give the impression that federalism was a part of our political discussion for long time. (see for example, Prabath de Silva. Island. 27.08.2000 p10, 03.09.2000 p 13)
That is not so. Nothing came of these discussions and they can now be forgotten.
The idea of ‘Federalism’ for Sri Lanka is exclusively promoted by the Tamil separatist movement. In 1949 S. J. V. Chelvanayagam started the “Illankai Tamil Arasu Kadchi” and inaccurately called it “Federal Party” in English. The correct translation was “Lanka Tamil State Party.” So the true nature of this particular brand of ‘federalism’ is immediately clear. There were intermittent calls for ‘federalism’ together with calls for district councils, regional councils and so on. For example, in 1959 Chelvanayagam asked for federalism. He wanted an autonomous Tamil state, as a single geographic unit. (Wishwawarnapala. “Ethnic strife and politics in Sri Lanka.” p 127). In 1998, TULF, EPDP and PLOTE met a German parliamentary delegation and asked for federalism. In 1999 Varatharaja Perumal spelled out what this ‘federalism’ really was. He wanted a ‘federal state’ where all the sovereign powers such as land, water, law and human settlements were totally in the hands of the so-called ‘federal state’. He was actually asking for Eelam but under another name. (Sunday Times. 1.3.98 p 4, 30.5.99 p 6)
This “Eelamish” federalism is also propped up by arguments from elsewhere. Rohan Edrisinghe and Pakiasothy Saravanamuttu made out a case for a federal Sri Lanka on the assumption that the Tamils are angry and fed up. They intend to keep on fighting till they get their Eelam. So the next best thing is to offer them a federal alternative to a separate state. (“Essays on constitutional reform” CEPRA 1994 Chapter 6). In order to satisfy the Tamils, they must be given a suitable ‘unit of devolution’. They must be given what they want. The Tamils must know exactly what they are getting. The Tamils have been badly treated by the Sinhalese. So they want a separate region where they can live with dignity away from the Sinhalese who have always been very unkind to them. The north and east of Sri Lanka, together with the port of Trincomalee, the apatite, and the ilmenite would do just fine.
Sri Lanka was not going to knowingly permit the division of the country. So subterfuge was necessary. Indirect methods were used to facilitate the move towards “Eelam”. One such method was by introducing the concept of federalism. Federalism is a perfectly legitimate form of government. Let us now look at certain aspects of federalism which are of interest to us.
Federalism is a form of government where sovereign powers are divided between a central government and regional governments. America has a central government in Washington and a state government in each of the 50 states. Each of these governments has a legislative, executive and judicial section. America had the state governors and the US President, Congress, and state governments. And two sets of laws federal and state. So the first thing we realise is that in federalism, all administrative functions are duplicated. There is two of everything. This is a cumbersome and expensive way of running a country. In addition, federalism calls for mediating agencies, such as Constitutional Court. Also, it is very complicated. Look at America’s legal system. Right on top is the US Supreme Court. This has branches in the states, called Federal Courts, in a complex series of federal circuits and judicial districts. There are 12 regional courts of appeal as well. These courts all derive their law from the Congress in Washington. Below this is another legal system. The state courts which derive their law from the decisions of their state governments.
Federalism is a very difficult system invariably leading to tensions. In America, there are recurring clashes of power between the centre and the states. For example, the states like to get federal funding (funds from central government) but they don’t want the conditions that come with it. Initially, there was the notion that both states and the centre were equal (“dual federalism”) but this gave way to increasing centralisation. The central government is Washington now has a host of central authorities such as the Small Business Administration, and US Departments for health, education, etc. These are like our ministries. There is the Anti-Trust division of the US Department of Justice, which administers the Sherman Anti-Trust Act. Then there is the Federal Reserve, America’s Central Bank, which influences the American economy across all states. It is the central government which has come to the rescue in several human rights issues.
Supreme Court rulings from 1954 (Brown case) brought racial segregation to an end. Also Americans now go to Supreme Court for rulings on individual rights, through the 14th Amendment. So in a sense the state governments are by passed. The states are given exclusive power over domestic matters such as wills, jails, health and education.
Whether federal or not, the primary objectives of any constitution is the creation of a strong, firm, stable central government. When we analyse a federal constitution we do so by first examining the central powers and its articulation with regional governments. Not the other way round. The American Constitution granted its main legislative, executive and judicial powers to the central government. Only Washington has power over foreign affairs, money and taxes.
Regional power was controlled by making Congress decisions superior to state decisions. And by giving a broad spectrum of rights direct to the ‘people’. (Amendments 10, 14) Universal franchise is guaranteed through the Constitution. Lastly there is the “Supremacy” clause which bluntly declares that where state and national laws clash the national laws shall prevail. (Article 6). It must therefore be clearly understood that in any federal constitution there is a very strong, preeminent and powerful central government, to hold the whole structure together.
Federation means “to form a union that acts as one” (“Safire’s New political dictionary. 1993. p 142). Our bogus ‘Federalism’ is going in the opposite direction, towards partition, not union. That is why the Tamil separatist movement sometimes substitutes the word ‘confederation’. Safire p 142.
This is a loos organisation. Confederation means ‘to create an alliance that acts as a group not a single entity”.
Let us look at the historical basis for the creation of a federal state. Federalism has succeeded only in situations where independent states have voluntarily come together to form a single sovereign state. eg. America, Switzerland, Australia. There is no record of a federal country ever becoming a unitary country. But there are plenty of instances where federalism has led to further fragmentation. Nigeria started out as a federal state with three ‘semi-autonomous’ regions. Now they have divided into 19. Biafra tried to secede. Canada has a French region, Quebec. Quebec wants to secede from Canada and form a separate sovereign state. They nearly won the 1995 referendum. Supreme Court has ruled that while Quebec cannot unilaterally secede, they can do so through a majority at a referendum. Now Ottawa and Quebec are openly clashing on the matter, with Ottawa saying belligerently that they will not let Quebec go. (Time. 7.9.98 p 9, Daily News. 21.10.99 p 12) Britain has given devolved powers to Scotland. The Scottish National Party intends to push for complete independence. (Island. 8.5.99 p 5, Daily News. 25.9.2000 p 11). The Republic of Ireland (Eire) wants a united Ireland and believes that it will happen within ten years (Island p 15). 1.1.2000 (Island. 3.10.2000 p 4). India ended up with a series of unnatural linguistic states. India will balkanise within this century.
Some attempts at federation never got off the ground. eg. Caribbean Federation, East African Federation. There are only two countries which converted from unitary to federal. Both are now in difficulties due to this.
The Basques want a separate state in Spain and have started bombing all over again. Belgium divided into two linguistic sections. This has led to serious administrative problems, as in the investigation of paedophilic murders.
Therefore we must not trust those agents of Tamil separatism who tell us that federalism is harmless and beneficial. It is a very difficult and unstable system of government.
Federalism is contraindicated for Sri Lanka. For one thing the island is too small. Federal states in America, Canada, Australia, India are between 50,000 to 100,000 square miles each. The whole of Sri Lanka is only about 25,000 square miles! There is no precedent for a well knit political unit like Sri Lanka to suddenly split into a federal system.
There is definite evidence that Sri Lanka was a single well-knit polity for several centuries. There were no ‘Tamils’ and ‘Muslims’. They were all part of the Sinhala nation. That is why the Sinhala word for ‘rata’ and ‘jathiya’ is one ‘Sinhala’. This is a political achievement well ahead of its time. The Tamil separatist movement has argued that Sri Lanka was never a ‘unified state’ and that the concept of a ‘unitary state’ is nothing more than a ‘sacred cow’. It should go. The concept of a ‘unitary state’ is not a sacred cow and it need not be abandoned.
The Sinhala people had forged a community in the island of Sinhaladipa, long before the sovereign states of France, Britain, Germany and Italy had started producing French, English, Germans and Italians. Sri Lanka has been a sophisticated urbanised sovereign state for about 1500 years. This is admittedly a mind boggling period of time. It was a unified polity. The Sinhala kingdom included Jaffna and Trincomalee (north and east). It was recognised by the other major kingdoms of the world, such as Greece, Rome, China, India. It developed the concept of ‘Ekacchatra’ or ‘under one flag’.
There were sub-kingdoms (Kotte period) overlords (Vanni chiefs). But over it all was the concept of a single consecrated king. This concept survived right up to 1815. Parakramabahu II (1236-1270) was referred to as ‘Trisimhaladhishvara’. Parakramabhau VI (1411-1466) was referred to in the Jaffna (Main Street) Tamil inscription as “Tirupavana Cakravartikal”. There was a Sinhala king till 1815. This king considered himself the king of all Sri Lanka, (Tri Sinhala) including the bits that the Portuguese and Dutch took over. The king kept trying to get them back. (D. G. B. de Silva. Island. 16.9.2000 p 8, 19.9.2000 p 8, 11).
I have dealt with this matter at length, for a good reason. The Tamil separatist movement, like a record stuck in a groove, keeps saying that Sri Lanka has unified for the first time in 1815. It took on a ‘unitarian’ character under the British, as a crown colony. It is perfectly ridiculous, if not utterly lunatic, to judge our ancient period according to modern standards and modern institutions.
Certainly there was no elected parliament, general elections and political parties during Dutugemunu’s time. These are modern institutions. But it is important to note that there was no possibility of a spontaneous transition to a more modern form of government, such as a constitutional monarchy, because by 1815, Sri Lanka had lost its power to decide anything.
We can also dismiss this argument by approaching it from another angle. The modern democratic state as we know it today, developed in Europe only in the late 17th century. Political parties (Whigs and Tories) developed significantly in Britain only after 1688. The Bill of Rights came in 1689 and the Parliamentary Reform Bill in 1832. 1832 can be treated as the starting date for modern parliamentary politics in Britain. Now by 1832, India and Ceylon were already under British control. So we see that Britain only perfected its brand of parliamentary politics during its imperial period, not before. Therefore, it is hardly sensible to use the British experience as a significant moment in our overall history. The British period is significant for its destructive impact on our natural resources and our culture.
Federalism is not relevant to Sri Lanka. Those who desire the ‘Package’ as a federal constitution are doing so to help Eelam. The public must now forbid the use of this word when we discuss constitutional reform.
Will Federalism solve Lanka’s problem?
Prabhath de Silva
Part 1 Introduction
- V. Dicey, the well known British constitutional jurist, in his treatise Introduction to the Study of the Law of the Constitution” says:
A federal state requires for its formation two conditions. There must exist in the first place, a body of countries such as the Cantons of Switzerland, the Colonies of America, or the Provinces of Canada, so closely connected by locality, by history, by race or the like as to be capable of bearing, in the eyes of their inhabitants, an impress of common nationality. It will also be generally found (if we appeal to experience) that lands which now form part of a federal state were at some stage of their existence bound together or by subjection to a common sovereign. ‘A second condition absolutely essential to the founding of a federal system is the existence of a very peculiar state of sentiment among the inhabitants of the countries which it is proposed to unite. The phase of sentiment, in short, which forms a necessary condition for the formation of a federal state is that the people of the proposed state should wish to form for many purposes a single nation, yet should not wish to surrender the individual existence of each man’s state or canton. The sentiment, therefore, which creates a federal state is the prevalence throughout the citizens of more or less allied countries of two feelings which are to a certain extent inconsistent-the desire for national unity and the determination to maintain independence.”
In order to achieve this aim, federalism, according to Dicey, ‘attempts to reconcile the apparently inconsistent claims of national sovereignty and of state sovereignty’ through a constitutional structure under which powers are shared or divided between the federal (national or central) governments and the states (or provinces) in the federation. Unlike in a unitary state where the powers of sovereignty are vested only in a central government, under a federal constitutional structure, only the powers relating to the matters of common interest essential to the preservation of the federal nationality like foreign affairs, national security and immigration and emigration etc. may be exercised by the federal (central or national) government, whilst the control and authority over other subjects may remain in the hands of individual states or provinces in the federation. Whilst executive, legislative and judicial powers are exercised only by a central government in a unitary states, under a federal form of government, these powers are shared or divided at two levels of administration namely federal (central or national) government and state (or province) in the federation. The United Kingdom, and France fall into the category of unitary states and The United States of America, Switzerland, Canada and Australia are among the ‘noteworthy’ models of federalism.
During the last three decades of the British colonial rule, which saw significant constitutional reforms paving the way for the island’s independence in 1948, several advocates of Federalism appeared in the contemporary debate and agitation for constitutional reform from time to time. Among these advocates of Federalism were S. W. R. D. Bandaranaike, the Kandyan National Assembly, C. S. Rajaratnam the founder President of a political organisation named the Federated Communities Progressive Association, and Leonard Woolf. Although the federalist views were not favourably considered or accepted by the colonial authorities, or by the contemporary political leaders of the island, they deserve to be re-examined and evaluated particularly in view of the current debate on the proposed constitutional reforms for devolution aimed at finding a political solution to the on-going ethnic of Sri Lanka. The object of this article, therefore, is to examine and evaluate some aspects of the pre-independence federalist proposals for constitutional reform since such study would be of much interest and relevance today than it would have been before the independence of Sri Lanka.
Part II Sri Lanka: The Formation of a Unitary State.
In order to fully understand the pre-independence federalist proposals for constitutional reform as well as the factors, which may have influenced them, it will be necessary to have a grasp of the historical background of the formation of a unitary form of government in Sri Lanka during the colonial rule.
In the beginning of the 16th century, which saw the advent of the Portuguese, there were two Sinhalese Kingdoms (Kotte and Kandy) and a Tamil Kingdom (Jaffna) in the island. [see C. R. De Silva, “Sri Lanka in the Early Sixteenth Century: Political Conditions”, C. R. de Silva and S. Pathmanathan, “The Kingdom of Jaffna up to 1620”, and T. B. H. Abeysinghe, “The Kingdom of Kandy: Foundations and Foreign Relations to 1638″ in K. M. De Silva, e.g.., ‘University of Peradeniya History of Sri Lanka”, Vol. 11 c 1500
to c 1800, Peradeniya, University of Peradeniya, 1995 pp 11-36, 105-121, 139-161]. A considerable part of the island which did not come under the direct control of these three kingdoms had been divided into principalities along the eastern and north-western coast and in the Vanni region. These principalities were under autonomous minor chieftains who had accepted the sovereignty or the overlordship of the kings of either Kotte, Kandy of Jaffna usually according to the proximity of their respective areas to these three kingdoms. Even before the establishment of these three kingdoms, the whole island, throughout its entire history, had not been under the effective control of a single monarch at all times except for brief intervals. [see K. M. De Silva, ‘A History of Sri Lanka’ Delhi, Oxford University Press, 1981 pp 3-96,565-570]. The Portuguese formally acquired sovereignty over the Kingdom of Kotte through a deed of gift written in their favour by the native Sinhalese King Don Juan Dharmapala of Kotte in 1580 [see T. B. H. Abeyasinghe, ” Portuguese Rule in Kotte (1594 – 1638)” in K. M. de Silva, e.g.., op. cit pp
1245-126] and they conquered the northern Tamil Kingdom of Jaffna by war in 1619. [see C. R. de Silva and S. Pathmanathan, “The Kingdom of Jaffna upto 1629”, in K. M. de Silva, ed., op. cit p 118]. The Dutch East India Company captured the maritime provinces from the Portuguese between 1640-1656. Over the next two centuries, maritime provinces around the island which included the territories of the former kingdoms of Kotte and Jaffna as well as autonomous principalities came under the effective rule of the Dutch East India Company in spite of a long-drawn controversy as to the legitimacy of their rule in these provinces that arose as a result of the conflicts of interpretation of the Treaty of 1638 concluded between King Rajasignhe II of Kandy and the Dutch East India Company for the expulsion of the Portuguese. Finally, in terms of a peace treaty concluded between the Kingdom of Kandy and the Dutch East India Company, the Kingdom of Kandy recognised the States General of the United Netherlands (the Dutch parliament) and the Dutch East India Company as the sovereigns of the maritime provinces around the island. The Dutch held these maritime provinces till 1796 when the British East India Company succeeded them. In 1802 these maritime provinces became a Crown colony of the British. In 1815 the sovereignty of the Kandyan Kingdom was ceded to the British in terms of a treaty (which is known as the ‘Kandyan Convention’) concluded between the Kandyan chiefs and the British. Accordingly, the whole Island came under the control of the British, although the British maintained a separate administration for the Kandyan provinces till 1833. In 1833, the whole island was brought under a unitary form of administration, incorporating the Kandyan provinces to the maritime provinces on the recommendations of the Colebrooke-Cameron Commission. Colebrooke, in his report on the administration, stated:
“The maintenance of separate and independent establishment for the maritime and the Kandyan provinces has been impolitic, in the check it has opposed to that assimilation which it is on every account desirable to promote between the various classes of whom the population is composed. By maintaining a separate government at Kandy, the influence of the chiefs has been upheld to the prejudice, in some instances of the people. The Kandyan districts which are situated below the mountains have a nearer and more natural connection with those of the coast, with which they maintain a trading intercourse; and as the whole country is divided into a greater number of districts than are required, it will, on every account, be desirable to incorporate them. Upon this inspection of the old charts, it will be seen that the boundaries of the districts are very imperfectly regulated either with reference to the convenience of the inhabitants or to the transaction of the public business.
In placing the whole island under the administration of the Governor and Council, all laws in future be promulgated in their name and entitled “ordinances of the Governor and Council” And in incorporating the sixteen provinces or districts. The country should be divided into five provinces.”
Thus, the Colebrooke’s thinking behind the merger of Kandyan provinces with the Maritime Provinces and the re-demarcation of provincial boundaries were to bring the Kandyan Sinhalese and the Low Country Sinhalese into a homogeneous entity under a unitary system of central government. On Colebrooke’s recommendations, a Legislative Council and an Executive Council were established. Although the official as well as unofficial members were nominated to the Legislative Council by the colonial government in the 19th and early 20th centuries, pursuant to the constitutional reforms of 1910, provisions were introduced for the election of a limited number of educated elite Sri Lankans to fill a certain number of seats on a franchise granted to a tiny segment of the population with a certain level of English education and income, whilst marking it more representative in its ethnic composition. The seats were allocated to Low Country Sinhalese, Kandyan Sinhalese, Ceylon Tamils, Burghers, Muslims and Europeans, in an attempt to maintain a representative character. The basic constitutional structure laid down upon the recommendations of the Colebrooke-Cameron Commission continued to remain with modifications introduced from time to time till the promulgation of the Donoughmore Constitution in 1931.
Post-Colebrooke-Cameron era saw important changes in the island’s social and political life. An economy based on the plantations (first coffee and later tea along with rubber and coconut) gradually developed, and these plantation areas were linked to the capital city of Colombo by a network of railways and public roads. The coffee and tea plantations were owned by European planters and later some Low County Sinhalese entrepreneurs too began to buy lands in the Kandyan Provinces. Under a unitary form of centralised government, migration from one province to another was facilitated. Through the fee-levying English medium schools, an elite class emerged from all the communities. These English educated people, irrespective of their ethnic background, were privileged to get employment in a unitary Government whose official language was English. The people began to migrate to places where the opportunities were available for employment and trade etc. All these changes strengthened the unitary character of the colonial administration throughout the island making Colombo the seat or the centre of government, and it also contributed to the formation of a broad coalition of English-educated elite belonging for different ethnic groups and religions. It should also be noted here that it was these elites who actually represented only about 4% of the entire population, began to agitate for reforms in the colonial administration, Professor A. J. Wilson observes:
“The underlying causes for agitation by these otherwise divided elites which had united only for specific purposes were to secure foist a greater ‘Ceylonisation’ of the public services; secondly more powers for the Executive and Legislative councils, and consequently a reduction in the powers of the governor; and thirdly, an ethnically-balanced legislature where each of the ethnic groups (including the religious groups of Muslims) would receive an agreed share of representation. From 1833 till 1931 and even beyond, during the periods of the Donoughmore Constitution (1931-47) and the Soulbury Constitution (1947-48), the dispute between the ‘elitists was on the quantum of representation and not on the structures of the government. In effect the competition was a struggle for a share in the spoils of office and in state mployment. Colombo, as the largest employed, became the nerve-centre of inter-ethnic rivalry.” [A Jeyaratnam Wilson, The Break-up Of Sri Lanka: The Sinhalese-Tamil Conflict’ (London, C. Hurst & Company, 1988), 6]
From the discussion in the preceeding paragraphs we may come to the conclusion that a constitutional structure for a centralised unitary government throughout the whole Island was laid down upon Colebrooke recommendations in 1833. This concept of a centralised unitary government was gradually strengthened during the British colonial rule and has been continued since independence. Furthermore, it may also be pointed out that a single unitary government, in the modern sense was not in control over the entire island before 1833. It was this concept of centralised unitary government that was challenged by S. W. R. D. Bandaranaike (1926), the Kandyan National Assembly and C. S. Rajaratnam and Leonard Woolf during the last three decades of the British colonial rule which saw significant constitutional reforms towards the independence of the island, and their federalist proposals constitute the central theme of this article.
Part III Pre-Independence Federalist Proposals for Constitutional Reform.
Although the Ceylon National Congress was formed in 1918 by a wider coalition of a group of elite leaders belonging to different communities of the island with a common goal to agitate for constitutional reform towards self-government within the British Empire, it later became divided in the early 1920s and failed to retain the support of its Tamil and Kandyan Sinhalese members on the issue of territorial representation. The Tamils as well as Kandyan Sinhalese groups in the Congress shared a common feeling of insecurity against the Low Country Sinhalese who, they thought, would dominate and discriminate against them in a government elected on the basis of territorial representation. Both these communal groups, therefore, favoured the then existing system of communal representation while the leadership of the Ceylon National Congress which was then in the hands of the Low Country Sinhalese contended that a four fifth of the seats of the legislature should be filled by representatives elected on a territorial basis whilst representatives from important minorities should be nominated to fill the balance one fifth and were later followed by the Kandyan Sinhalese, who began to assert their identity as ‘a separate Kandyan nation’.
S.W. R. D. Bandaranaike
In 1926, S. W. R. D. Bandaranaike who was then a newcomer to the Sri Lankan politics shortly after his graduation from Oxford, formed a political party named “Progressive Nationalist Party.’ S. W. R. D. Bandaranaike having realised the communal differences of the three major communities: Low Country Sinhalese, Kandyan Sinhalese and Tamils, or having keenly observed the conflicts within the Ceylon National Congress, began to advocate a federal constitution for the island based on the Swiss canton system. In a lecture delivered under the auspices of the Students’ Congress in Jaffna, in July 1926, Bandaranaike expressed the view that there would be problems ‘if a centralised form of government was introduced into countries’ like Sri Lanka with ‘large communal differences’ since ‘a centralised form of government assumed a homogenous whole.’ In this lecture he was highly critical of the role of the elitist Ceylon National Congress and its attitude towards the communal differences: said Bandaranaike:
“When the congress was started the articles to which all the members subscribed themselves was that their aim and goal should be self-government within the Empire. Beyond the securing of a few more seats in the Legislative Council nothing else was done. Those who agitated for reform concentrated their whole energies on arguing in two directions of fallacious bases. The system was not questioned as to its suitability. Secondly they aimed at copying the type of government as exiting in England ……………… It was wrong to think that the differences were created by a few ambitious persons and when those persons died the differences would disappear. A hundred years ago, there were no such differences. They did not appear because the Englishman sat on the heads of the Tamils, the Low country Sinhalese and the Kandyan Sinhalese. The moment they began to speak of taking the government in their hands, then the differences that were lying dormant smouldered forth. If they considered past history they would see that the three communities, the Tamils, the Low Country Sinhalese and the Kandyan Sinhalese had lived for over a thousand years in Ceylon and had not shown any tendency to merge. They preserved their language, their customs and their religion. He would be a very rash man who would pin his faith on the gradual disappearance of these differences.” [The Ceylon Morning Leader, 17.07.1926]
Having, thus, emphasised the need to understand the reality of existing communal differences, Bandaranaike, at the end of his lecture, proposes a federal constitutional scheme as a solution, and ‘The Ceylon Morning Leader’, a contemporary newspaper whose report of this lecture is the only source of information available gives a summary as follows:
“In a federal Government, each federal unit had complete power over themselves. Yet they are united and had one or two assemblies to discuss matters affecting the whole country. That was the form of Government in the United States of America. All the self-governing dominions, Australia, South Africa, Canada had the same system. Switzerland afforded a better example for Ceylon. It was a small country, but three races lived there. French, Germans and Italians. Yet Switzerland was a country where the federal form of Government was very successful. Each canton managed its own affairs. But questions of the foreign affairs, commerce, defence etc. and matters about which difference and controversies would be at a minimum were dealt with by the Federal Assembly. In Ceylon, each Province should have completeautonomy. There should be one or two objections that could be raised against the system but when the objections were dissipated, he was convinced that some form of Federal Government would be he only solution. He had not dealt with the smaller communities temporary arrangements could be made for special presentation. Those and temporary arrangements would exist till the fear exited about one community trying to overlord the other. He would suggest the same for the Colombo Tamil seat. The three main divisions in the island were the Kandyan Sinhalese, the Low Country Sinhalese and Tamils. It was difficult to find a system that would completely satisfy everyone. That was in brief the Federal system. He would be amply satisfied if it was recognised that the problem did exist. If there were a better form of plan he hoped that someone would think about it and place it before the people.”
It appears that Bandaranaike’s audience at his lecture at Jaffna had remained ‘sceptical’ about his proposals. This is evident from the question they raised and the discussion that followed. A summary of this is given in the “Ceylon Morning Leader” as follows:
“A lively discussion ensued. The following is a brief account of the points raised. Mr. J. K. Chanmugam did not understand how the system worked in early days of Ceylon history. He did not understand how the system outlined would be worked satisfactorily especially when feeling of a wrong type were uppermost in many minds. He instanced the way in which Sir P. Arunachalam was treated in his endeavours to come forward for the Colombo Seat and also the way in which Sir P. Ramanathan was treated in the election of the Vice-President to the Legislative Council. Mr. Subiah said that even in the Federal Assembly differences would arise. Mr. Julius Philips said that the federal system would be all right in provinces where one race was overwhelmingly large. How was the Western Province? Mr. J. H. P. Wijeratnam instanced the difficulty of some provinces being unable to carry on the work and administration due to lack of revenue. Mr. Philips wished to know how the question of religion and caste were to be solved. Those two questions seemed to be acute, at least in North Ceylon. If there were disputes among the three big communities who was to settle them? Judging from numbers, the Low-Country Sinhalese would have an easy walk over. Mr. R. Subramaniam said that small communities should not be neglected. Mr. Bailie Mylvaganam said that under all these circumstances it was safe under the British. Mr. Bandaranaike in reply said that the question of religion was hardly a matter to be dealt with by legislation. The question of financial inequality was a serious objection, so also was the question of education. The common fund could be shared among the provinces that required help. The subject was full of controversy. The last speaker had hit the nail on the head. Why not remain under the British? Why all that worry and discussion? No nation deserved the name of a nation if it did not want a measure of self-government. It deserved to be wiped out of the surface of the earth. Dr. Isaac Thambiyah said that the lecture was powerfully delivered and reasonably thought out. He hoped that a great deal of interest would be created. The British Malaya was the only place he knew where Federation was working and working well too. He suggested that their leaders though in Jaffna and Colombo should pay a visit to Malaya and come back and tell them what they thought of Federation. In conclusion, Dr. Thambiyah congratulated the Students’ Congress for its choice of lectures.
Some time ago a gentleman spoke of the ideals of education. That night Mr. Bandaranaike had spoken of the ideals of Government. He moved a vote of thanks to the lecturer. The vote was carried with acclamation.”
Even the prominent Sinhalese and Tamil political leaders of the day were not at all receptive or responsive to Bandaranaike’s Federalist proposals. Whilst the Sinhalese leaders in the Ceylon National Congress advocated for a centralised form of self-government based on a territorially elected Westminster model legislature the prominent Tamil political organisations, opposing territorial representation, demanded the retention of the system of communal representation (in a centralised legislature) under which they wanted the ratio of 2 to 1 maintained between the Sinhalese and Tamils when allocating seats. Nevertheless, a young man named James T. Ratnam who was a Jaffna Tamil based in Colombo responded in the form of a rejoinder that appeared in the ‘Ceylon Morning Leader’ of 01.07.1926. Expressing the view that the federal system suited large countries and Switzerland was an exception, Ratnam contended that the Swiss model could not be applied to a politically immature country like Sri Lanka as the Federal system in Switzerland had evolved for centuries. Said Ratnam:
(To be continued)
(To be continued)
President outlines “Constitutional Revolution”
[TamilNet, July 22, 2001 15:34 GMT]
President Chandrika Kumaratunge said Sunday that the present Constitution could be amended even without a two-thirds majority in parliament if the government obtained a clear mandate at next month’s referendum. “How this could be done would be revealed in due course,” she told activists and representatives of the ruling People’s Alliance who attended a special meeting at the racecourse in Colombo.
Accoridng to the President, the present Constitution is undemocratic and the new Constitution will “uphold democratic ideals.” The new constitution will have provisions to hold provincial council, local council and parliamentary elections simultaneously every six years, the President said.The President said that there have been instances in world history where measures had been taken outside the perimeter of the national constitution for the well being of the people. She cited the example of Abraham Lincoln, who as US President “took such steps on 1st January 1863 outside the constitution, despite strong opposition at that time.”
She said that the ethnic problem should be addressed by political means, with the participation of the clergy and other representatives, but “the military efforts against the LTTE should go on.”
“I would commit my life to safeguard the country, people and the party, as the country is at stake at the referendum. Anybody who cannot pledge support to this endeavor is welcome to leave the party,” the President declared.
“Tamil political parties and Tamil youths opposed the adoption of the present constitution in 1978. Therefore these parties could not oppose its replacement now.”
Co-operation, not vituperation, needed
Velupillai Prabhakaran and his supporters will be beating their war drums around the world claiming that the devastation of the Colombo International Airport and the adjoining Air Force base at Katunayake yesterday was a stupendous victory for them. Victory it was for terrorism. A severe defeat it was for President Chandrika Kumaratunga, the Leader of the Opposition Mr. Ranil Wickremesinghe, religious and community leaders and all of those whom the public presumes are working for democracy and good governance.
It was expected that the Barbarian, despite his postures of peace to dupe the international community, would strike a severe blow as the one he dealt on Tuesday morning. The government has been saying it all the while.
July 25, 2001
This refers to your editorial “Co-operation and not vituperation needed” (The Island – July 25,2001).
The tenure and tone of your editorial is as usual typical of the Sinhala-Buddhist mind-set. You seem to think that the Sinhala government has a right to bomb, kill, maim, rape Tamils, but the LTTE has no right to retaliate even against legitimate military targets.
Any impartial observer will tell you that LTTE consciously avoided targeting Katunayake’s main airport where there were thousands of passengers waiting to board planes. If the LTTE wanted they could have blown up the building, but they did not.
Veluppillai Prabhakaran and his supporters did not beat their war drums around the world as you claim. The people who were beating the war drum despite the LTTE’s unilateral cease-fire for 4 long months were not Tamils, but Sinhala racists like the editor of The Island. To the credit of the Tamil people not a single Tamil spoke against the peace efforts brokered by the Norwegian government. It is the Sinhala Urumaya, JVP, a section of the Buddhist clergy with Mahanayake Theros at the forefront, National Movement Against Terrorism etc are the racist outfits which campaigned systematically against peace and in favour of all out war.
President Chandrika within a time span of two weeks twice beat the war drums when she declared that “the military efforts against the LTTE should go on.” (TamilNet July 22,2001)
More than Sinhalese it is the Tamils who need peace since the war is fought in the Northeast and not in the South. Many commentators overlook this fact. The ability to stop the war lies squarely in the hands of President Chandrika. If she abandons the military path and opts for a peaceful negotiated political settlement of the conflict, then the blood bath on both the sides of the divide can be stopped.
The editor of The Island is at liberty to call the armed struggle of the LTTE as “terrorism” and the LTTE “terrorists!” But such name calling will not solve the problem. If you call the LTTE’s armed struggle as “terrorism” then what you call the bombing, shelling, execution style killings, rape and murder by the Sinhala army? Should it be termed rightly as “State terrorism?”
The onus of good governance rests with the Sri Lankan government. Not with the Tamils. The editor should sit back, relax and think why Sri Lanka lost the peace it enjoyed since 1956? Why a docile and “I am sir, Your Obedient Tamils” took up arms to fight for their basic rights and defend themselves against an oppressive government. Sinhalese in Tamils shoes would have fought for their rights, perhaps with more courage!
The editor should not bemoan about absence of democracy when President Chandrika’s prorogues parliament and orders for a referendum. When the basic rights of Tamils are trampled by an autocratic and racist government, it does so by burying all democratic principles. When democracy is denied to Tamils by the government, then the denial of democracy to Sinhalese people follows like the night following the day!
I am conscious of the fact that writing to the editor about Tamil rights and democracy is like throwing pearl before swine! It is just for record, so that future generations of Tamils not blame us for not standing up to the journalistic terrorism practised by The Island newspaper editor!
However, anticipation of the enemy’s moves has not been the forte of Gen. Anuruddha Ratwatte and his generals and Prabhakaran hit the military and civilian airports. Where the defence establishment is concerned, it is an utter disgrace for them, where a group of around 20 persons were able to attack what should have been the most strongly fortified bases in the country. Do we have anything called intelligence gathering or plans to protect vital military establishments? This kind of disaster has struck before many times, but no lessons have been learnt.
Of course, the inevitable happened. The nation is torn apart with a government having lost its majority attempting to cling on desperately to power while the Opposition with only a slender majority is attempting to thwart the government’s attempts to circumvent the Constitution by taking to the streets.
Meanwhile, the nation as a whole was equally interested in the Coca-Cola Tri-Nation Cricket tournament with the military services on duty at the cricket match! Prabhakaran knows how to fight a war whereas neither the government nor the Opposition parties appear inclined to fight a war or have a clue how to do so.
Tuesday’s devastation is estimated to cost hundreds, if not thousands of billions of rupees. With the tourist industry brought to a dead halt, the cost of the carnage will pile up by billions of rupees more. The wheels of the economy are turning very slowly and that too thanks to an IMF loan. The constitution is paralysed. Parliament is prorogued. Is there a possibility of the two leading democratic parties, along with other minority parties, attempting to co-operate and save the country from this terrible plight?
Oh, no! Not a hope. Even before the rattle of gunfire had abated at Katunayake, by dawn yesterday morning the state radio was going through its disgusting ablutions.
‘What happened at Katunayake was the contribution of the UNP to the Black July of 1983’, the pundits were proclaiming. Another said: ‘The terrorists were able to enter the airport because of the Opposition demonstrations on Thursday and the UNP was to blame for it all’. This is infantile gibberish, the pundits know. But it is necessary to preach to the converted to keep their flagging spirits up.
Sri Lanka is in a severe crisis. With an effective part of the striking arm of the Air Force out of action, drastic measures have to be taken. But this cannot happen with a prorogued parliament and an impending referendum, which is being opposed vehemently probably by more than half the voters of this country. The only pragmatic and sensible thing to do is for the parties that still retain a semblance of their democratic character to get together, if not for a national government but some kind of workable arrangement to tide over the crisis.
President Chandrika Kumaratunga has for the last seven years tried to go it alone without the Opposition but had failed miserably. Even if there are to be negotiations with the LTTE, which both the UNP and PA agree on, these two parties have to reach consensus on vital issues. We have said all this before, but to no avail.
Sri Lanka is once again in a desperate situation, mainly due to the confrontationist and aggressive politics of the PA and the UNP.
The terrorists are holding the whiphand and must be delighted that even after the absolute disaster at Katunayake, the anti-UNP vituperation of the government has not ceased. Vellupillai Prabhakaran is undoubtedly poised to strike again. The PA and UNP must size up this situation and meet this threat. If not the country will hold the leaders responsible for the consequences.
Your comments to the Editor
Maha Sangha calls to cancel referendum, re-summon Parliament
Kumaratunga seeks ‘unequivocal’ mandate
[TamilNet, July 12, 2001 19:03 GMT]
Sri Lanka’s President Chandrika Kumaratunga Thursday blamed the island’s constitution for the ills besetting her country and called for an unequivocal mandate for a new constitution in an address to the ‘nation’ on state-run television. The speech focused primarily on the need to do away with the proportional representation system of elections introduced under the 1978 constitution.
The PA says that reverting to the old system would ensure the party a clear majority if not two-thirds of the seats in the Parliament. Tamil parties, however, say that it would give rise to ‘Sinhala only’ governments. The President indicated in her speech that she would have recourse to an extra-Parliamentary procedure for establishing the new constitution. “It will only create turmoil,” said a spokesman for the opposition United National Party, reacting to her statement.
President Chandrika Kumaratunga said that she was ready to abolish the office of Executive President through the New Constitution. Ms. Kumaratunga contested the general and Presidential elections in 1994, pledging to abolish the office of the executive President and solve the ethnic conflict if she was elected. She not only pledged but also set a deadline for to implement her promise. The Marxist Janata Vimukthi Peramuna (JVP) withdrew their candidate for President when Ms. Kumaratunga promised that she would abolish the office of Executive President before 15 July 1995.
“She dwells on the personal sacrifices she is making for the sake of the people, indulging in reprehensible self-pity. What else does she expect to do when holding the highest office in the country? Take two days off for leisure every week?” asked the opposition spokesman.”Since then she used many devious means, including the coupling the solution to the ethnic conflict to the abolition, to ensconce herself in the office of Executive President. She must be joking when she says that she will relinquish the Presidency. It is what has given her the power to do all this,” said a spokesman for the UNP.
Following is the Sri Lankan President’s speech in full:
“In keeping with the tradition followed by me since election by you as President, it has been my practice to have a dialogue with you whenever the country, the nation or the state is faced with a crisis. Accordingly, it is my intention to address you today on the current crisis arising out of recent developments in Parliament.
You are already aware that the Government has taken two important decisions with regard to the prevailing situation. One is the prorogation of Parliament. The other is the holding of a nationwide referendum on August 21.
I wish to make it abundantly clear to you that these decisions were arrived at due to the concern I have for the welfare of the country and our people, and my honest dedication to stabilize the progress, development and forward march of our country.
Due to situations that developed in Parliament in the past three weeks, an unstable situation was created in the legislature. We understood well that the concern among the public with regard to this situation could be an obstacle to the progress of the country. With a view to providing the necessary space and opportunity for the concerned political parties to find a solution to their differences, I decided to prorogue Parliament for a period of two months. This step was taken under Section 70 of the prevailing Constitution of the country.
Together with this, my Government has taken steps to hold a nationwide referendum, with regard to the Constitution of the country. Being a person who has always given priority to and respected the supremacy of the people, once again I have taken measures to give due place to and enthrone the supremacy of the people. The opportunity is now given to the people to decide as to whether we are to retain the present Constitution that has presented many and varied obstacles to the welfare and progress of the entire Sri Lankan nation, or, whether there should be necessary Constitutional changes in keeping with the needs and aspirations of the people.
Firstly, the 1978 Constitution was imposed on the people of this country with no consultation with the people. Secondly, it is the present Constitution that has been the principal cause behind the several serious crises faced by the country and the people today.
I wish to refer to only a few of these in a democratic country, the supremacy of the people is expressed by way of a free election by the people. However, this expression of the people’s view through a free election can be systematically distorted and seriously altered through the system of counting the votes and the determination of those who have been elected by the people. Under this distortion of the representative process, a party that has won 80 electoral districts gets only 51 members elected in contrast, the Opposition that won 20 electoral districts gets 49 members elected. Similarly, a party that wins 70% of the electoral districts gets only 55% elected representatives, while a party that wins 30% of the electoral districts has 45% of elected members.
This has ensured that no political party will be able to establish a stable government. In no other country in the world does such an electoral system exist. There is no such electoral system prevailing in the United Kingdom, France, Australia, India and even the United States of America, that have different electoral systems. Therefore, it is our proposal, through a new Constitution, to have an electoral system that will genuinely and accurately reflect the wishes and aspirations of the majority of the voters or electors (people). It will be a systematic combination based on the electorate system as exists in other democratic countries, and a system of genuine proportional representation to ensure suitable, fair, equitable and genuinely proportionate representation to the various communities and political parties. It is necessary to be rid of the present preferential or ëmanaapaí system, and introduce a different system of proportional representation.
Secondly, we also propose to establish commissions for specific spheres of activity through the new Constitution. Provision was made in the Draft Constitution presented by me to Parliament on August 3, 2000, for the establishment of all these Commissions. If what we presented then were endorsed by vote in Parliament, those Commissions would have been established and functional today. The proposals with regard to these Commissions were discussed at great length and detail with the United National Party, all parties that are constituents of the People’s Alliance, and all other parties then represented in Parliament, before being presented to Parliament. We included a large number of amendments proposed by the United National Party.
Consequently, the Leader of the Opposition pledged to vote for the New Constitution, but on August 3, he broke his pledge without giving any reason whatever. I need not describe the manner in which that pledge was broken on that occasion. You would no doubt have seen it very well on television.
However, due to my own and the present Government’s commitment to democracy, we proposed once again that these Commissions should be established through the New Constitution.
Thirdly, We propose through the New Constitution to provide fair, constitutional and political solutions to the curse of the ethnic crisis that has, for the past 18 years, gravely affected the lives of all our citizens, be they big or small, rich or poor, urban or rural, and whatever community or religious group they may belong to. We also proposed that the necessary provisions to honestly implement these proposals should be included in the New Constitution.
Fourthly, further, another proposal of mine is to abolish the office of Executive President through this New Constitution. I have always had a very deep interest in carrying this out. This was clearly stated in the Draft Constitution that was presented on August 3, last year. I seek your mandate to definitely and effectively carry this out through the New Constitution.
I do not need the all-encompassing powers that go against the aspirations of the people that are firmly entrenched in the office of the Executive President. My strength is the constant trust placed in me by the people of this country. My understanding, capability and the political experience I have gathered, which was by birthright, is sufficient for my work for the people. More importantly, the sense of honesty and immense dedication to the service of the people that I inherited from my parents also add to my strength. The sacrifice of all that I possess – my wealth, my time, and even the freedom that the poorest is entitled to, for the service of the people, is my sole treasure.
When all these aspects are gathered, I will have more strength than the dictatorial powers provided by the 1978 Constitution. It is my fervent belief that as long as you, the people of this country place your trust in me, for as long as I receive the unstinted support and assistance of the leaders of our party. It will be possible for us to realise together what little is left to realise of the beautiful common dream we had.
I seek your clear and unequivocal mandate that a New Constitution is necessary. Subsequently, we are fully committed to introduce the New Constitution within this year after necessary consultations with the broad sections of society. For this purpose, as I have always done, on this occasion too, I invite all political parties that have a genuine concern for the welfare and interests of our people to join with us in this great and noble task. With all honesty and on behalf of the suffering masses of this country, I hereby call for a broad national understanding with me and my Government to prepare a New Constitution that suits the needs of the nation, and ensure its implementation”.
From: “M.Nadarajan” <Mnadarajan@aol.com>
Subject: Unwarranted Euphoria over Peace talks? – M.Nadarajan
Everyone is so excited about whether peace talks will be held or not. They are breaking their heads to find some way of getting the Sri Lankan Govt. to give up its intransigence and get to the negotiating table.
At least everyone, except some lunatics, is agreed that the talks if they are to take place, should only be held between the govt. in power (representing the Sinhalese -of course, it would be better if the main opposition party joined in) and the LTTE (representing the Tamils). Gone are the days when people thought that the problem is a terrorist one and not an ethnic one. Those who still think of it as a terrorist problem are just a few.
Sinhala leaders such as J.R. Jayawardena and Chandrika listed the problems faced by Tamils and vowed to solve them. After elections were won such thoughts were abandoned. It is because there were ethnic problems that Sinhalese and Tamil leaders had talks, and signed pacts and agreements—though the Sinhalese abrogated them. The govt. must be na EFve if it thinks that it could marginalize the LTTE or that these problems could be solved militarily, or that they could be solved by talking to the so called “democratic moderate parties”. The word “Eelam” or “Liberation” is included in the names of all those parties. Even the EPDP , which is with the govt., has the word “Eelam” in its name. It too insists that the merger between the erstwhile Northern and Eastern provinces should continue.
Just sitting down at a table and talking is not going to solve anything. What are they going to talk about? There should be a meeting of the minds on several matters. No party should come for talks thinking it could dictate terms to the other. However, the govt. thinks it should.
Because they are in a majority in the country, and because successive Sinhalese govts. have been changing the demography of the erstwhile Eastern province (where the percentage of Sinhalese increased from 9 % in 1947, the year before independence, to 32% now), and parts of the erstwhile Northern province by state aided colonization by Sinhalese, and forcible driving awa y Tamils from Tamil areas, most Sinhalese think that the island belongs only t o Sinhalese Buddhists.
They seem to think that others do not matter and are living under their patronage and sufferance. To them there is only a Sinhalese Nation in the Country. There never been a Ceyonese nation nor a Sr i Lankan nation in the Country. As mentioned in the much quoted Cleghorn minut e of 1790 there have been a Sinhalese nation and a Tamil nation in the country . No one calls the Sinhalese Tamils or vice versa,
A lot depends on the attitude of both sides for talks to succeed. If the Sinhalese do not want any portion of the island to become a separate state and want people living in the island to be citizens of one country, then tha t country must be multi-lingual, multi-cultural, and multi-ethnic. All citizen s of the country should be equal in all respects to each other,as in all countries of the world. This concept should be part of the constitution, legislated and made inviolate. Except when they pay lip service to the western world or donor countries, no Sinhalese politician genuinely accepts this concept.
All Sinhalese govt.s have thus far felt that they should decide what the status of the Tamils should be. They consider Tamils as subordinates or second class citizens and want to impose their thinking on the Tamils, whether Tamils like it or not. No other country in the world considers a section of its citizens as second class.
Attitude of the Govt The present government in power which was first elected in 1994 (and re-elected in 2000) was elected on a ‘peace platform’ with the slogan “peace at any cost”, which was later transformed to “peace through war”—an illogical concept. It unleashed the most atrocious and violent war on the Tamil civilians and their liberation fighters, the LTTE. It says that it wants to win the hearts and minds of Tamils and wean them away from the LTTE . The amount of violence, destruction, torture, rapes, incarceration at will and indiscriminate killings have in fact drawn the Tamils closer to the LTTE . In fact the govt. is the best recruiter for the LTTE.
The liberation fighters are fighting for a cause without any pay. The depth of their feeling and the intensity with which they fight is an indication of their dedication. On the other hand the govt. forces are made up mainly of village boys who are unemployed and join the forces to earn money for their families. They are the ones, and not children from middle class homes, who are used as cannon fodder. No wonder nearly 35,000 have deserted the armed forces, mostly with their weapons, and are now committing armed robberies in the country. Repeated grants of amnesty has resulted only in a few turning themselves in. Increased salaries and perks have not resulted in the govt. attracting the required number of men.
The govt. in power was not genuine in their avowed desire for peace. It paid lip service to the western and donor countries by saying “no military solution only a negotiated peace settlement”. At the same time it did everything possible to pursue war and delay potential peace talks.
During the run up to the elections in 1994, Chandrika mentioned that she had a “peace package or proposals”. This package did not surface when the farcical talks of a few hours per day on four days took place in Jan. to April 1995. When it finally surfaced in Aug. 1995 all Tamil parties found them unacceptable.
Since then, the dilly dallying and delaying tactics were resorted to postpon e talks, all the time telling the media and the International community that the govt.’s prime objective was to achieve peace through negotiations. The hope was that if they postponed talks long enough they could defeat the LTTE militarily and talk from a position of strength. War was pursued with the utmost ferocity, and unprecedented amounts were spent on importing the most modern weapons, aircraft and naval vessels. War crimes such as the use of food and medicine as weapons of war, rapes, torture, indiscriminate bombing, strafing and shelling, of Tamil civilian areas took place. Indiscriminate arrests and extrajudicial killings under the Prevention of Terrorism Act and Emergency Regulations took place. What is happening is GENOCIDE OF TAMILS.
Chandrika had talks with the leader of the major opposition Sinhalese party (UNP) in the hope that they can take a united stand against the Tamils. The peace proposals were watered down several times and a Constitution Bill was presented in Parliament in August 2000, almost six years after she took power. The leader of the opposition refused to go along and the so-called ‘democratic Tamil parties’ and the LTTE found it unacceptable. Even the EPDP is opposed to the de-merger of the North-Eastern province subject to a referendum. Yet the govt. talks about implementing the draft Constitution.
It appears that more than two years ago, Norway was approached by the govt. as well as the LTTE, to get involved in the peace process. Delays took place initially over the type of participation, the govt. wanting a facilitator an d the LTTE, a mediator. This maybe thought of as splitting of hairs. , But it is more serious than that. A facilitator makes it possible (facilitate) for the two parties to meet and carry out negotiations between themselves. A mediator will mediate between the two parties and edge them on to a solution .
With the mistrust between Tamils and Sinhalese which has existed over severa l decades, the acrimony due to the demonization of the LTTE and its leader by the govt., and the amount of misinformation and falsehoods spread by the govt., it would be most difficult for both parties to sit together and arriv e at a meaningful solution. What is required is a mediator and not a facilitator. However the govt. has been pig-headed and insists on calling the Norwegian official, a facilitator. The LTTE reluctantly agreed.
The differences between the two sides seem to be so enormous that it would take years to arrive at a permanent solution which is what is required.There could be temporary solutions in the interim with the basic principles of a final solution agreed between the parties. Even a child would understand that if the govt. wants Tamils to be citizens of their country, Tamils would want normalization of their lives and the trust that they would be treated as equals. They would, in addition, want the safety of life, limb and property, which they do not have now. The two parties cannot go on killing each other and at the same time talk peace calmly and sincerely. The talks have to be between two legitimate parties that respect each other as equals. If one party is banned or is illegitimate, an excuse would be available to this or a successor govt. to wriggle out of an agreement saying that it does not have to honor an agreement with an illegitimate party. It is for these reasons and not as c!
onditions or pre-requisites, that the LTTE spoke of normalizing by lifting the embargo, cease-fire and de-proscription to create the right atmosphere for talks.
Even after Norway got involved, and despite international pressure to establish a cease-fire as a key step towards negotiations, the actions of the govt. show that it was hell-bent on pursuing the war and is obstinately against normalization. Pronouncements by the President, Prime Minister, the Foreign Minister are contradictory and confusing. The latest call to the UNP for the establishment of a National Unity Govt. which the UNP has turned down, is another ploy to drag its feet on negotiations, Another recent ploy was the request to sideline Eric Solheim as facilitator. In this case, the Norwegian Foreign Minister was bamboozled into taking a hasty decision. There was no discussion with the LTTE which, as a party to the dispute, should have been consulted. Solheim’s departure is going to delay the peace process. He had been working on the problem for than two years. He understood the background and complexities of the problem, and above all, enjoyed the trust of the LTTE,
and at least that of the President and the Foreign minister. Any replacement would take time to familiarize himself.
All of the above gives the impression that the govt. is not at all serious about negotiations, but wishes to prolong the war in the hope that the LTTE can be defeated.
LTTE’s attitude. Tamils gave an overwhelming mandate to their Parliamentarians to ask for a separate state. As a result of the failure by them to get a separate by parliamentary and nonviolent methods and continued oppression, discrimination and continuous pogroms against Tamils, the youth formed liberation groups to fight for a separate state. When talks were held in Thimbu between the govt. of Sri Lanka and the Tamil groups under the sponsorship of the Indian govt., all Tamil groups jointly offered to give up the demand for a separate state if Tamil aspirations were met. The then Prime minister’s brother who negotiated on the govt.’s behalf unceremoniously turned down their offer. The LTTE which is the only group fighting the war of liberation now has made the same offer during talks in 1990, 1995, and in press statements by Prabhaharan and many of the organization’s senior leaders. It has been offering unconditional talks ever since. The problem has been that the govt.s in power either did not take it seriously or did not want to fulfil the aspirations of Tamils.
The govt.s continued to say that the LTTE would never give up the demand for a separate state; that it will not give up fighting; that the offer of talks was a ploy to re-group and attack. They also said that they could not trust the LTTE. I t took Solheim and some religious leaders who had visited the LTTE leadership to convince the govt. that Prabhakaran was serious. Solheim had told Prabhaharan that a separate state was out of the question The LTTE had not only agreed to go for unconditional talks under normalized condition, but also agreed to a cease-fire, and to the conditions of the Memorandum of Understanding prepared by Solheim. It observed a unilateral cease-fire from Dec. 24th and extended it for a further three months.
It agreed not to attack the South of Sri Lanka. It also freed some prisoners of war. The govt. did not reciprocate the cease-fire and it was called off. During the period of the cease-fire the govt. forces continued to attack killing more than 400 LTTE men and injuring many more. The govt. had said that it would agree for unconditional talks, but insisted on a major condition that the LTTE give up the demand for a separate state. In return LTTE should have asked for the govt.’s acceptance of the aspirations of Tamils, and to give up the unitary Constitution.
The number of cadres in the LTTE has been variously estimated at between 2,000 and 7,000. Ex-High Commissioner for India J.N. Dixit once said, “befor e I finish smoking my pipe my men would haven disarmed the Tigers”. The late Defense Minister Ranjan Wijeyaratne said, “ When they see my army the boys’ brigade will pee in their pants” The govt. was of the view that the LTTE had agreed to talks because they have been weakened. The feelings among the Tamils have been underestimated by the govt. It thought that it could do anything to the Tamils, including genocide , and Tamils will not react. The LTTE announced recently that since the commencement of the war 17,211 of heir men and women had been martyred, yet they seem to have enough cadres to fight a conventional war against an enemy far superior in number.
Democracy In a democracy the will of the people is carried out. Dr. Brian Seneviratne, a Sinhalese academic recently wrote an article titled “Democracy in Sri Lanka”, published on the Illankai Tamil Sangam web site. This article is recommended for reading to get an idea of democracy in Sri Lanka. In a homogeneous country, govt.s change depending on the peoples’ response to the policies of the various parties. In a heterogeneous country like Sri Lanka, particularly where elections have always been held on ethnic lines (i.e. no Sinhalese can win a seat in a Tamil area and vice- versa), and every thing else is done based on ethnicity, there is a permanent majority (Sinhalese) and a permanent minority (Tamils).
The govt. has always been, and will alway s be, a Sinhalese govt. Tamils did not elect the govt. in power. The Tamils expressed their democratic wishes at the last free and fair elections held i n Tamil areas, which was in 1977. They voted overwhelmingly for separation. Fighting a neo-colonial govt. not elected by them, and one that behaves in the way it does, cannot be considered fighting a govt. duly elected by them.
Territorial Integrity, Unity and Sovereignty. Many people, who do not understand what they mean, so long as it suits their argument, have bandied about these words. The most important players in this game of Sri Lanka’s future, outside of Sr i Lanka are USA, India, UK, Canada, European Union and of course Norway. Let u s look at the systems of governments in those countries.
(a) USA: The Constitution is federal and there are 50 fiercely independent minded states with immense powers over affairs of their state. Each state ha s an elected Governor and an elected Assembly. The governor is the Chief Executive of the state and cannot be removed by the President of the country .
(b) India: The constitution is quasi-federal and there are 26 states divided on a linguistic basis. There are also states with special powers E.g. Kashmir. Governors are appointed by the center and can be dismissed only by it. The governors are not Chief Executives and hold largely ceremonial positions with few powers. The Chief Executive of the state is the Chief minister elected by the people. Under Sec 356 of the Constitution a state Assembly can be dissolved by the center. Hence the constitution is called quasi-federal. Frequent abuse of Sec.356 has led to the demand for abolishin g it or amending it and a commission is examining this. States have a large amount of powers including that for law and order.
(c) UK: This is made up of four units- England, Scotland, Wales and Northern Ireland. Scotland and Wales have their own Parliament and Northern Ireland is i n the process of getting one. Scotland has its own Reserve Bank, which issues currency. Each of the units even has its own sports teams. The units can separate from the United Kingdom on the basis of a simple majority at a referendum. Scotland came very close to breaking away at the last referendum (d) Canada: This has several provinces one of which is a linguistic one, Quebec. Quebec can break away from Canada on the basis of a simple majority at a referendum it almost did at the last referendum.
(e) European Union : Many countries in the union have federal system of govt . Have all the above countries preserved their territorial integrity, unity an d sovereignty. If so, why should having a Federal system of govt. affect the integrity, unity and Sovereignty? Would all these important players kindly convince the Sri Lankan Govt. on this matter?
Federalism Chandrika calls her proposed Constitution “Federal in all but name”. Why have only in name? Why not have a truly federal Constitution. It would appear that such a system is acceptable to the Tamils and their representatives, the LTTE -a Tamil State in the Northeast province and a Sinhala state in the rest of the country. The Sinhala State could be divided into more states if needed.
The first person to propose a federal system was none other than Chandrika’s father, SWRD Bandaranaike. He did so in 1926 and suggested three states, one for the Kandyan Sinhalese, one for Low Country Sinhalese and the third for Tamils.
The next request was by made in the early 1930s by Kandyan Sinhalese in a submission to the Donoughmore Commission.
The next request was by the Federal party after in 1948. It was supported in Parliament by Drs. N.M. Perera and Colvin R.De Silva, leaders of the Trotskyite party who later became ministers.
JR Jayawardena, ex-President in an interview with the press after he relinquished office said that federalism was the solution to the ethnic problem.
Gamini Dissanayake, ex-minister, and the ex-Presidential candidate said that federalism was the solution This was reported in an article by Dr. Jehan Perera titled “Gamini’s last testament was federalism.
Would the govt. rather continue with the carnage, destruction, and economic disaster faced by the country faced by the country than agree to a truly federal system where all citizens will be equal in all respects. There is no point in blaming the hard-liners, the JVP and Sihala Urumaya, who together polled only 7% of the votes cast at the last elections. Even when the innocuous Equal Opportunities Bill was withdrawn it was the hard-liners who were blamed. The Buddhist monks number only about 35,000 and all of them are not hardliners.
If the Sinhalese would only accept the concept which in one sentence is “WE ARE PREPARED TO TREAT TAMILS AS EQUAL CITIZENS WITH SINHALESE IN ALL RESPECTS” talks will be meaningful and should be about preparing a Constitution, laws and regulations and ways of implementing them.
Sinhalese can forget about notions of superiority and treating Tamils as second class citizens. Nothing is solved unless it is solved right.
If they cannot agree to that concept why not part peacefully as was done in the case of Czechoslovakia, Malaysia-Singapore and possible separation of Scotland and Quebec. The decision is the government’s and not that of the Tamils
(Note: Since writing the above Chandrika has categorically indicated that she will continue with the war)
Referendum may prove divisive
By Nirupama Subramanian
COLOMBO, JULY 22. It is now becoming increasingly clear that the August 21 referendum on the need for a new constitution called by the President, Ms. Chandrika Kumaratunga, is likely to be a highly divisive exercise for Sri Lanka.
There is little doubt in the minds of most Sri Lankans that the present constitution, which vests enormous, authoritarian powers with the President, should be changed.
But rather than build an environment for consensus on what this new constitution should be, the referendum may only sharpen political differences between the two main parties and heighten tensions between the Sinhalese and minorities.
This is mainly because Ms. Kumaratunga’s second attempt (the first was last year) to bring in a new constitution is widely perceived, not as a step towards building a new country, but as a political gamble to ensure that the People’s Alliance (PA) government, of which her Sri Lanka Freedom Party is the main constituent, remains in power despite losing its majority in Parliament.
It seems unnecessary to hold a referendum to get the people to say “yes” to a new constitution because that is what most people want.
As Ms. Kumaratunga has said so many times, it is this felt need that has given her two terms as Executive President, and two terms to her PA government. She also counts PA victories at all the smaller elections in between as a mandate to change the constitution.
It is not surprising then that the decision to hold a referendum on this question has led to the suspicion that a majority “yes” vote is likely to be claimed as a mandate for the continuance of the PA minority government.
Even assuming this is an honest attempt to frame a new constitution, the government seems not to have learned any lessons from last year’s unsuccessful bid to pass the Constitution Bill through Parliament.
It was a Bill drafted mostly by the PA and the opposition United National Party together, but it still failed because there was only a part-consensus on it.
There was no transparency during the last six months of the framing process, permitting Sinhala hardline rumours to run wild that the government and the Opposition had together “sold-out” the north-east to the Tamils, even while the Tamil parties were arguing that the deal was too little for them to agree to it.
The UNP saw the gathering storm and detached itself from the process on the ground that it did not agree to the provisions in the constitution that enabled the incumbent in the office of Executive President to retain those powers for the full elected term, while automatically becoming the executive Prime Minister as well.
A belligerent government then vowed to push the Bill through even if it meant buying legislators from the Opposition to make up the mandatory two-thirds support for it in Parliament. The whole plan was flawed and it was no surprise that it fell through.
This time around, no one knows what the new Constitution might contain, The president has said she intends to consult all sections of society before framing the new Constitution, but that could be done without holding a referendum.
In fact, as it becomes clear that the campaign for the referendum will be conducted along party lines, with people being urged to vote according to their political allegiance, the referendum even opens out the possibility of a majority voting No.
After all, the PA coalition polled only 49 per cent of the votes in the last general election, that too, with the assistance of the Sri Lanka Muslim Congress, which is now out of the alliance.
What if the “no” votes outnumber the “yes”? Not only will Ms. Kumaratunga’s hands be tied for good, future governments will use this referendum as the basis for not touching the draconian constitution.
Even a majority “yes” vote has to be substantial for it to hold any meaning. As the referendum is legally non-binding on Parliament, it would still require a two-thirds support to be passed. It might be the government’s intention to turn Parliament into a Constituent Assembly and push through last year’s Bill, perhaps with some amendments, with a simple majority.
But such a course of action could have grave consequences for Sri Lanka. There is no provision in the constitution for turning Parliament into a Constituent Assembly and legal experts have warned that a new constitution adopted by such means would have no legitimacy or credibility, and could as simply be thrown out by the next government.
It has so far been held that one of the main reasons for a new constitution is to devolve powers to the Tamil minority so that the ethnic conflict can be settled peacefully.
In statements by the President and members of her Cabinet since the announcement of the referendum, there is only passing or no reference to this aspect of the new constitution.
This has aroused the suspicion of the Tamil parties about what might be in it for them. And there is confusion about where this leaves the Oslo-facilitated peace process with the LTTE. Is the LTTE to be consulted on the new constitution? If not, has the peace process been formally buried?
If the LTTE is not to be consulted on the ground that it has shown itself to be not interested in a solution within a united Sri Lanka, as one minister has said, the President should be wooing the other Tamil parties, especially those in Parliament.
But barring the Eelam People’s Democratic Party, a partner in her government, the rest seem totally alienated from her, and leaning more and more towards the LTTE.
The alienation can only grow with the President’s referendum campaign that the constitution needs to be changed so that a stable government can be formed without the assistance of minority parties.
The time for a referendum on the issue was perhaps in 1998 or 1999 when it was clear that the government was stuck in its task of bringing in a new constitution due to the intransigence of the UNP. Now, it seems to be a justification for the prorogation of Parliament, a step the President seems to have taken to enable the PA government to side-step a no-confidence motion.
Unless Ms. Kumaratunga quickly effects a course correction, violent demonstrations like the one witnessed last week may become the norm in the days to come, pitting the Sinhalese against each other and against the minorities, and perhaps finish off for good chances of ever building a consensus on a new Constitution.
சந்திரிகா அரசு கரைசேருமா அல்லது கவிழுமா?
ஸ்ரீலங்காவில் என்னதான் நடக்கிறது? ஒட்டக்கூத்தன் பாட்டுக்கு இரட்டைத் தாழ்ப்பாள் என்ற கதைபோல மக்கள் முன்னணி அரசு மீது நம்பிக்கையில்லாத் தீர்மானத்தை எதிர்கட்சிகள் நாடாளுமன்றத்தில் கொண்டுவருவதை முறியடிக்கு முகமாக சனாதிபதி சந்திரிகா குமாரதுங்கா நாடாளுமன்றத்தை எதிர்வரும் செப்டம்பர் 7ஆம் நாள் மட்டும் தள்ளி வைத்து இருக்கிறார்.
அதனை எதிர்த்து தடையையும் மீறி எதிர்க்கட்சிகள் நடாத்திய கண்டன ஆர்ப்பாட்ட ஊர்வலத்தைக் கலைக்க காவல்துறை சுட்டதில் இரண்டு பேர் உயிர் துறந்து அறுபதற்கும் மேலானவர்கள் காயப்பட்டுள்ளார்கள்.
ஜே.ஆர். ஜெயவர்த்தனா தனது ஐக்கிய தேசியக் கட்சி ஆட்சியை ஐந்து நட்சத்திர மக்களாட்சி என்று அடிக்கடி சொல்வார். அது அவர் காலத்தில் பெரிய பகிடியாக எடுத்துக் கொள்ளப்படும்.
ஜே.ஆர்; 1980 ஆம் ஆண்டு திருமதி ஸ்ரீமாவோ பண்டாரநாயக்காவை அரசியலில் இருந்து ஒரங்கட்ட அவரது வாக்குரிமையைப் பறித்து தேர்தலில் நிற்க முடியாதவாறு செய்தார்.
1983ம் ஆண்டு நடத்த வேண்டிய தேர்தலை 1982 ஆம் ஆண்டு நடாத்திய நேரடி வாக்கெடுப்பின் மூலம் நாடாளுமன்றத்தின் ஆயுளை ஜே.ஆர் மேலும் ஐந்து ஆண்டுகள் நீடித்தார்.
1987 ஆம் ஆண்டு எழுதப்பட்ட இந்திய-இலங்கை ஒப்பந்தத்தின் மை காய்வதற்குள் அந்த ஒப்பந்தத்தை, குறிப்பாக வட-கிழக்கு இணைப்பை, எதிர்த்து நாடு தழுவிய பரப்புரை செய்யப் போவதாக ஜே.ஆர் அறிவித்தார். இவை காரணமாகத்தான் ஜே.ஆர் தனது ஆட்சி ஐந்து நட்சத்திர மக்களாட்சி (கiஎந ளவயச னநஅழஉசயஉல) என்று சொன்னபோது மற்றவர்கள் விழுந்து விழுந்து சிரித்தார்கள்.
சனாதிபதி ரணசிங்க பிரேமதாசாவும் 1991ஆம் ஆண்டு தனக்கு எதிராகக் கொண்டு வரப்பட்ட குற்றவியல் தீர்மானத்;தில் இருந்து தப்ப (iஅpநயஉhஅநவெ அழவழைn) நாடாளுமன்றத்தை இரண்டு மாதங்களுக்குத் தள்ளி வைத்தார். அந்த இடைக்காலத்தைப் பயன்படுத்தி தன்னை எதிர்த்த கட்சிக்காரர்களை வழிக்குக் கொண்டு வந்தார்.
இப்போது சனாதிபதி சந்திரிகா எந்த ஜே.ஆர். மற்றும் பிரேமதாசா ஆட்சியை சர்வாதிகார ஆட்சி, மக்கள் விரோத ஆட்சி எனப் பரப்புரை செய்து ஆட்சிக் கதிரையைப் பிடித்தாரோ அதே ஜே.ஆர். மற்றும் பிரேமதாசா கையாண்ட மக்களாட்சி விரோத வழியைக் கையாண்டு நாடாளுமன்றத்தை தள்ளி வைத்துள்ளார். ஆளும் கட்சி நாடாளுமன்றத்தில் தனது பெரும்பான்மையை இழந்ததை அடுத்து மக்;கள் முன்னணி அரசு கவிழ்வதைத் தடுக்கவே இந்த தள்ளி வைப்பு இடம்பெற்றுள்ளது.
சனாதிபதி சந்திரிகா நாடாளுமன்றத்தை தள்ளி வைத்ததன் மூலம் மக்களாட்சி மரபுகளைக் குழிதோண்டிப் புதைத்துவிட்டார். ஜே.ஆரின் ஐந்து நட்சத்திர மக்கள் ஆட்சியையும் ஏப்பம் செய்து விட்டார்!
அது மட்டும் அல்லாது ஜே.ஆர் பாணியில் “தேசிய மட்டத்தில் முக்கியத்துவம் உடையதும், மிகவும் அவசியமானதுமான புதிய அரசியல் யாப்பு நாட்டுக்குத் தேவை என்ற முன்மொழிததோடு நீங்கள் ஒத்துப் போவீர்களா? (- “யுசந லழர in யபசநநஅநவெ றiவா வாந pசழிழளயட வாயவ வாந உழரவெசல நெநனள ய நெற உழளெவவைரவழைn றாiஉh ளை யெவழையெடடல iஅpழசவயவெ யனெ யn நளளநவெயைட சநஙரசைநஅநவெ?” )
என்ற கேள்வியைக் கேட்டு ஆகஸ்ட் 21ம் நாள் ஒரு நேரடி வாக்கெடுப்பை நடாத்தவும் சந்திரிகா திட்டமிட்டு உள்ளார்.
ஒரு விதத்தில் இது செத்த பாம்பை அடிக்கிற கெட்டித்தனம் போன்றது. சந்திரிகா 1994, 2000ம் ஆண்டுகளில் நடந்த நாடாளுமன்றத்துக்கான பொதுத் தேர்தலில் அனைத்து வல்லமை படைத்த சனாதிபதி ஆட்சிமுறையை ஒழித்து மீண்டும் நாடாளுமன்ற மக்களாட்சி முறையைக் கொண்டு வருவதற்கு ஏற்கனவே ஆணை கேட்டுப் பெற்றுள்ளார். அப்படியிருக்க மீண்டும் 80 கோடி ரூபா பணச் செலவில் ஒரு நேரடிவாக்கு நடத்த வேண்டிய அவசியம் ஏன் என்பது புரியவில்லை.
இதில் வேடிக்கை என்னவென்றால் அந்த நேரடி வாக்கெடுப்பில் பெறப்படும் முடிவு நாடாளுமன்றத்தைக் கட்டுப்படுத்தாது என்பதுதான்!
இந்த நேரடி வாக்கெடுப்பின் நோக்கம் ஒரு புதிய யாப்பைக் கொண்டுவந்து, அரசியல் அதிகாரத்தை பரவலாக்கி இனப் பிரச்சினைக்கு தீர்வு காண்பதல்ல. மாறாக இப்போதுள்ள விகிதாசார தேர்தல் முறையை ஒழித்து விட்டு ஒரு தேர்தல் தொகுதியில் யாருக்கு அதிக வாக்குகள் கிடைக்கிறதோ அவரே வெற்றிபெற்றவர் என்ற முன்னைய தேர்தல் முறையை மீண்டும் கொண்டுவருவதுதான். ஆங்கிலத்தில் இந்த முறையை கசைளவ pயளவ வாந pழளவ ழச றinநெசள வயமந யடட என்று சொல்லுவார்கள். இதன் கீழ் நடத்தப்படும் தேர்தல் முடிவுகள் சிங்களக் கட்சிகள் சிறுபான்மை தேசியக் கட்சிகளது ஆதரவு இல்லாமல் ஆட்சி செய்ய வழி சமைக்கும் என்பது சந்திரிகாவின்கணிப்பு.
இந்த முறையிலான தேர்தல் மூலம் மொத்த வாக்குகளில் 45-50 விழுக்காடு வாக்குகளைப் பெறும் ஒரு கட்சி நாடாளுமன்றத்தில் 70-80 விழுக்காடு இருக்கைகளைப் பெற வாய்ப்பு இருக்கிறது.அதாவது ஒரு கட்சிக்கு மூன்றில் இரண்டு பங்கு பெரும்பான்மை கிடைத்து விடும் வாய்ப்புண்டு. அப்படி பெரும்பான்மை பெறும் சிங்களக் கட்சிக்கு சிறுபான்மை மக்களைப் பிரதிநித்துவப் படுத்தும் கட்சிகளின் தயவில் இருக்க வேண்டிய அவசியம் இல்லாது போகும். இப்போது மக்கள் முன்னணி அரசுக்கு ஆட்சியில் நிலைத்திருக்க முஸ்லிம், தமிழ்க் கட்சிகளின் தயவு தேவைப்படுகிறது.
இந்தத் தேர்தல்முறை சிறுபான்மை தேசிய இனங்களுக்கும், சிறிய கட்சிகளுக்கும் பாதகமானது. பெரும்பான்மை சிங்களக் கட்சிகளான ஸ்ரீலங்கா சுதந்திரக் கட்சி அல்லது ஐக்கிய தேசியக் கட்சி இரண்டுக்கும் சாதகமானது. ஜேவிபி, தமிழ்க் காங்கிரஸ் போன்ற சிறு கட்சிகளுக்குப் பாதகமானது.
ஸ்ரீலங்காவிற்கு ஒரு புதிய யாப்பு உருவாக்கப்பட வேண்டும் என்பதில் கருத்து வேற்றுமை இல்லை. ஆனால் அது எப்படி, எந்த அடிப்படையில் வரையப்பட வேண்டும் என்பதுதான் கேள்வியாகும்.
ஒரு நாட்டின் அரசியல் யாப்பு என்பது அந்த நாட்டு மக்களின் சமூக, அரசியல், பொருளாதார அபிலாசைகளைப் பிரதிபலிக்க வேண்டும். நாட்டின் மிகப் பெறுமதி படைத்த ஆவணம் அரசியல் யாப்புத்தான். அதுதான் நாட்டின் அரசியல் மற்றும் ஆட்சிமுறையின் அத்திவாரம். ஒரு நாட்டின் ஆக்கம் அல்லது அழிவு அந்த நாட்டின் யாப்பில் பெரும்பாலும் தங்கியிருக்கிறது.
ஒரு நாடு காலத்துக்காலம் நாடாளுமன்றத் தேர்தலை வைத்து மக்கள் பிரதிநிதிகளைச் தெரிவு செய்து விட்டால் மட்டும் அந்த நாடு ஒரு மக்களாட்சி முறையைக் கடைப்பிடிக்கும் நாடு என்று சொல்லி விடமுடியாது. நாடாளுமன்றத் தேர்தல் மக்களாட்சி முறையின் ஒரு கூறு மட்டுமே. அது மட்டும் போதுமானது அல்ல.
உண்மையான மக்களாட்சித் தத்துவம் நடைமுறையில் இருக்க வேண்டும் என்றால் சட்டத்தின் முன் சகரும் சமம் என்ற கோட்பாடு ஆழமாக அந்த நாட்டின் யாப்பில் எழுதப்பட வேண்டும்.
இப்போதுள்ள யாப்பை வரைந்தவர்கள் ஒரு பலவீனமான, குழப்பமான நாடாளுமன்றத்தை உருவாக்கினார்கள். சர்வாதிகாரம், தான்தோன்றித்தனம், கொடுங்கோன்மை போன்ற தத்துவங்களின் அடிப்படையிலேயே இந்த யாப்பு உருவாக்கப்பட்டது. இந்த யாப்பைப்பற்றி ஜே.ஆர். ஒருமுறை சொன்னதை ஞாபகப்படுத்திக் கொள்வது நல்லது. “”ஒரு ஆணைப் பெண்ணாக மாற்றுவது நீங்கலாக மற்ற எதனையும் இந்த யாப்பின் கீழ் என்னால் செய்ய முடியும்”” என்பதுதான் ஜே.ஆரின் கூற்றாகும்.
அனைத்துலக மட்டத்தில் ஒன்றுக்கு மேற்பட்ட இனங்கள் வாழும் நாடுகளில் அந்த இனங்களின் மொழி, கலை, பண்பாடு, தனித்தன்மை இவற்றைப் பாதுகாக்க அதிகாரப் பரவல் மூலம் தன்னாட்சி தாயகங்களை உருவாக்கும் கோட்பாடு பின்பற்றப்படுகிறது. இதன் மூலம் அந்த நாடுகளின் அரசியல் உறுதிப்பாட்டை நிலை நாட்ட முடிகிறது.
கனடா நாட்டின் யாப்பு இதற்கு மிகச் சிறந்த எடுத்துக் காட்டாகும். பிரன்சுமொழி பேசுவோருக்குகிட்டத்தட்ட சுதந்திரம் படைத்த மாநிலம் உருவாக்கப்பட்டுள்ளது. அவர்களுக்கு தனியான (மாநில) நாடாளுமன்றம், கொடி, அமைச்சரவை, நீதித்துறை, கல்வித்துறை, காவல்துறை, குடிவரவு இருக்கின்றன. எனவேதான் பிரன்சு மக்களில் சரிபாதிக்கு மேலானோர் கனேடிய மத்திய அரசில் இருந்து பிரிந்து போவதை நேரடி வாக்கெடுப்பில் எதிர்த்து வாக்களித்திருக்கிறார்கள்.
ஸ்ரீலங்காவில் அதிகாரப் பரவலாக்கல் என்றால் பிரிவினை என்ற தவறான எண்ணம் நிலவுகிறது. அது மட்டும் அல்லாது முழு இலங்கையும் சிங்களவர்களுக்கே சொந்தம், புத்தபிரான் இலங்கைத்தீவில் புத்தமதம் 5,000 ம் ஆண்டுகள் நீடித்து நிலவ வேண்டும் என்று சொல்லி இருக்கிறார் என்ற பரப்புரை பாமர சிங்கள மக்கள் மத்தியில் செய்யப்படுகிறது. இப்படியான கோட்பாட்டின் அடிப்படையில்தான் சிங்கள அரசியல்வாதிகள் ஸ்ரீலங்காவை ஒற்றையாட்சி நாடாகாவும் புத்த மதத்தைஅரச மதமாகவும் யாப்பில் பிரகடனப் படுத்தியிருக்கிறார்கள்.
எனவே ஒரு புதிய யாப்புத் தேவையா என்ற நேரடி வாக்கெடுப்பில் மக்கள் அதற்கு ஆதரவு நல்கினாலும், அது எத்தகைய யாப்பு? எந்தவகையான யாப்பு? ஒற்றையாட்சியா? கூட்டாச்சியா? அடிப்படை சுதந்திரங்கள் உறுதிப்படுத்தப் படுமா? நாட்டு மக்கள் எல்லோரும் ஒரே நிறை, ஒரே விலை,ஒரே தரம் என்பது உத்தரவாதம் செய்யப்படுமா? என்பதைப் பொறுத்தே நாட்டுக்கு மீட்சியா அல்லது தொடர்ந்து வீழ்ச்சியா என்பது தீர்மானிக்கப்படும்.
ஒன்று மட்டும் நிச்சயம். மக்களாட்சித் தத்துவத்தின் குரல்வளையை நெரிப்பதுபோல் நாடாளுமன்றத்தை தள்ளி வைத்து மக்கள் மத்தியில் ஒரு நேரடி வாக்கெடுப்புக்கு ஏற்பாடு செய்ததின் மூலம்சனாதிபதி சந்திரிகா இனப்பிரச்சினைக்கான நோர்வே நாட்டின் சமாதான முன்னெடுப்புக்களை பறணில் செருகி விட்டார். அத்தோடு சிங்களவர், தமிழர், முஸ்லிம்கள் என அனைத்து மக்களது எதிர்ப்பையும் பாரபட்சமின்றி சம்பாதித்துள்ளார். ஏன் அமைச்சரவையில் ஒரு பகுதியினரது எதிர்ப்பையும் சம்பாதித்துள்ளார். அரசியல், பொருளாதாரப் புயலில் சிக்கித் தவிக்கும் சந்திரிகா அரசு தப்பிக் கரைசேருமா? அல்லது கவிழுமா? என்பதே இன்று எல்லோர் மனதையும் வாட்டும் கேள்வியாகும்.
ColomboPage News Desk, Sri Lanka
by Dr. Laksiri Fernando, University of Colombo
A New Constitution undoubtedly is the need of the hour. It has proved again and again that the present constitution has become an absolute fetter and obstacle to the development of this country both politically and economically. Drafted with scant respect for democracy and constitutional principles, the present constitution was amended sixteen times during its first ten years (1978-1988). The amendments not only exposed but also exacerbated the intrinsic inconsistencies of the constitution detrimental to the smooth functioning of the political system. The rate of amendment in fact was 1.6 per year until 1988! Then it came to a grinding halt.
At the time of the 13th Amendment, even the Supreme Court was perplexed whether the proposed amendment was consistent or not with the constitution. The constitution had become completely deformed and distorted by that time with extraneous amendments added to the already paradoxical legal conundrum. This was one major reason why the intentions of the 13th Amendment, a commendable effort to resolve the ethnic conflict, through the devolution of power, could not be achieved. The result was the continuation of the ethnic conflict and the war, devastating the economy and the country. The constitution consists of 117 pages, but the amendments 102 pages, nearly 87 percent of the main document. This is another example for the distorted legal character of the constitution.
A constitution of a country is the foundation of its political and governmental system. A constitution, therefore, should base on sound democratic principles and should safeguard fundamental rights of the citizens in no uncertain terms. Although some fundamental rights are incorporated in the present constitution, that incorporation is limited to five articles and few principles of civil and political rights, a mere fraction of human rights that Sri Lanka has ratified under the international human rights law. The right to life, the most sacred of all rights, is not recognized. No recognition of economic, social or cultural rights or the most important rights of women or the children are accorded at all.
Sri Lanka is obliged under Article 2 (3) of the International Covenant on Civil and Political Rights (ICCPR) to ensure “effective remedies” for those persons whose rights or freedoms are violated. There is a checkered procedure under the present constitution to file fundamental rights cases before the Supreme Court. However, these cases should be filed within one month’s time of the violation and the procedure is so entangled in legal intricacies, the ordinary people, the rural folk or the poor of this country are kept largely out of the system. There is no procedure for public interest litigation where a third party could request for “effective remedies” on behalf of those who unable to take legal action due to economic or other difficulties.
The present constitution is a complete aberration in terms of democracy. Unfortunately, it was drafted to suit certain “whims and fancies” of particular political personalities, namely J. R. Jayewardene and R. Premadasa. When political personalities changed, the constitution proved difficult to operate. This uneasiness was seen even under D. B. Wijetunga, in fact a UNP President (1993-94), and became insurmountable after Chandrika Kumaratunga came to office in 1994. However, the constitution had become so rigid and legally intricate, it was not possible to change even after so many efforts.
The idea of the drafters of the constitution was to create a weak and chaotic Parliament and a strong Executive President. The constitution was created on a philosophy of autocracy, despotism and authoritarian rule. It was argued that this sort of authoritarian rule was necessary in a developing country where its people could not afford or understand full democracy. The philosophy behind the constitution was akin to the regimes of Ne Win in Burma, Suharto in Indonesia and Ferdinand Marcos in the Philippines. The fruits of the full operation of this constitution were explicit during the period between 1983 and 1993 when many thousands of people became killed, disappeared or their human rights were brutally suppressed.
A constitution in a country is the fundamental law. The fundamental law should stay above the ordinary law and should give structure and framework to the country’s diverse institutions. The fundamental law or the constitution should be impartial and should reflect aspirations and desires of all communities in society. It should be a true reflection of the balance of relations between various communities. The rigid unitary character of the constitution, although slightly adjusted by the 13th amendment, does not reflect adequately the aspirations of different communities, other than the majority Sinhalese. When ambiguities are vast in all directions, even the majority community can be apprehensive about their rights and aspirations.
It is almost a universal constitutional principle today to devolve power and create autonomous regions or provinces when there are cultural communities living in contiguous areas. Although the 13th Amendment intended to do this in an ambiguous manner under the pressure of the international community, the amount of power devolved to the provinces and the mechanisms set up as safeguards have not been to the genuine satisfaction of the minorities.
The constitution does not recognize cultural rights of the minorities. No safeguards are afforded under the chapter on language rights. The chapter itself is ambiguous and partial to the majority community. Although the last or the sixteenth amendment to the constitution had tried to remedy the situation in respect of the language of administration and official record in the country, different formulations have rendered ambiguity and confusion. Without a new constitution these ambiguities will not be remedied to resolve the language issue, a major facet of the ethnic conflict.
A constitution, as a country’s fundamental law, should be neat and clear cut. All the legal details and procedures should not be incorporated in a constitution. Those can be detailed out in subordinate laws. For example, if only the main electoral principals are incorporated in the constitution and if the subordinate electoral law governs the details, any ambiguity of the electoral system can be remedied through a simple majority in Parliament. At the same time, through interpreting the changes in the subordinate law within the framework of the fundamental principles in the constitution, the judiciary can easily check any abuse of the fundamental law and that means the constitution. It appears that many constitutional drafters find it difficult to decide on what is fundamental and what is not? Why should the “words and music” of the national anthem be incorporated in the constitution?
A constitution of a country should be a readable document even for the ordinary folk. It is not only a legal document but also a (consensual) political manifesto that should charter the country for a future period of time. It should give flesh and blood to the institutional structures of the political system, so agreed by the people, and should clearly demarcate the powers and functions, checks and balances of those various institutions.
A constitution of a country should ensure political stability in the system and the country at large. This stability is important particularly in a developing country like Sri Lanka where the economy and the well being of the people will depend largely on the stability of the system. In respect of the executive presidency and the electoral system, and also in many other aspects, it has been proved that the incorporation of principles completely alien to the local soil is superfluous. Sri Lanka should not risk large experimentations in the future but should base on recent and past experiences, simple and clear.
The rigidity and inflexibility are the most outrageous in the present constitution in terms of its amendment. The constitution was promulgated with four fifths in Parliament in 1978 obtained under the previous “first-past-the-post” electoral system. The promulgated constitution introduced a system of proportional representation with no possibility of a party or a coalition of parties obtaining a two-thirds majority in order to change the constitution. Having realised this problem during his own tenure, President Jayewardene extended the life of Parliament in 1982, with his four fifths majority in tact until 1988. It was under this undemocratic measure that thirteen amendments to the constitution were possible between 1982 and 1988. After the holding of elections under the present proportional representation system there was no possibility of changing or even amending the constitution. The constitution has become rigidified and monolithic.
A constitution of a country like Sri Lanka should be flexible apart from being stable. To ensure the continuity and stability, a special majority is always required to change a constitution.
However, this special majority should be politically feasible within the electoral system. Sri Lanka is a country with rapid changes. Especially given the complexities of the ethnic conflict, new constitutional arrangements may always be necessary to adjust and readjust the interests and aspirations of all communities. A party or coalition of parties with people’s mandate should be able to ensure this constitutional flexibility apart from governing the country in a stable manner. What the electoral system at present has created is not only the rigidity in the constitution but also the hazardous instability in the government.
The clear sufferers are the people, as the power seekers obstruct the smooth functioning of the system under the circumstances. While preserving the good elements of proportional principles to allow small party representation in Parliament, the electoral system needs to be changed to ensure stability of government and the flexibility of the constitution.
Features Sept 4,2000
Why the phrase “Unitary state” was dropped
by Raja Gooneratne
Lecturer in Law
The Open University
The notion that Sri Lanka is a “unitary state” has been inculcated in the minds of
successive generations by our ancestors and on the basis of archeological and
historical evidence. In the same vein it is the concept that has been subjected to
much debates and controversies resulting in what we experience today.
However this idea has once again ignited the public consciousness after the new Draft Constitution was tabled in Parliament for debate and vote.
In this context it is appropriate to examine what changes took place in the concept of “unitary state” in the process of constitutional reforms in Sri Lanka. In this article, it is expected therefore to make a brief survey into this concept beginning from the first Republican Constitution up to the Draft Constitution of 2000.
The concept of “unitary state” enshrines two basic ideas. Firstly it connotes the idea that Sri Lanka is geographically, politically and territorially one sovereign country. Secondly, it implies the racial unity that is, all communities, be they Sinhalese, Tamils or Moors etc. should have a right to live in this land as one nation. In brief, the concept of a unitary state means and includes that Sri Lanka is one, independent and unitary state, and it has only one nation consisting of all communities who have made this land a home for themselves.
Therefore if the makers of the constitution attempt to dilute this notion providing constitutional provisions by which even the slightest opportunity is available for terrorist groups to establish politically, territorially and geographically a district province for a distinct ethnic group, then the collective consciousness of public would awake and do whatever possible to curb such eventuality.
Let us now examine the constitutional provisions relating to the unitary state.
The first Republican Constitution of 1972 recognized this fundamental concept under its Articles 1 and 2 which provides that Sri Lanka is an independent, sovereign and unitary state. The same provision again appears in the second Republican constitution of 1978 which provides under Article 1 and 2 that Sri Lanka is a free, sovereign and unitary state. All these are in accordance with the history, tradition and the collective consciousness and spirit of the people in this land.
Consequent to the signing of Indo-Sri Lanka Accord by the President of Sri Lanka and the Prime-Minister of India in 1987, the Sri Lankan government decided to amend the Constitution to create and establish a system of provincial-level government. For this purpose, two Bills were brought before Parliament for enactment.
They were the 13th Amendment to the Constitution Bill and Provincial Councils Bill. Many persons filed petitions, challenging the constitutionality of those Bills. The Supreme Court convened its Full- Bench consisting of all nine judges to hear these petitions. The reasoning of the supreme court regarding the constitutionality of these two Bills and how it affects adversely the concept of “unitary state” has been reported in the case of “In re the Thirteenth Amendment to the Constitution and the Provincial Councils Bills appearing in part 2 Sri L.R. 312 of 1987”.
In this case, one of the main arguments against the Bills was that they intend to establish a constitutional framework which is federal or quasi federal in nature, so that it is against Article 2 which (unitary state clause) is entrenched in Article 83. Therefore any amendments to Articles referred to in Article 83 needs the approval of the people at a referendum.
In analyzing the provisions in the Bills and their impact on the unitary state, the former Chief Justice Sharvananda has said that the term unitary in Article 2 is used in contradiction to the term federal which means an association of semiautonomous units with a distribution of sovereign powers between the units and the centre. In a unitary state the national government is legally supreme over all other levels. The essence of a unitary state is that sovereignty is undivided, in other words that the powers of the central government are unrestricted. The two essential qualities of a unitary state are (1) the supremacy of the central Parliament and (2) the absence of subsidiary law-making bodies. It does not mean absence of subsidiary law-making bodies but it does mean the they may exist and can be abolished at the discretion of the central authority.
It does therefore mean that by no stretch of meaning of words can subsidiary bodies be called subsidiary sovereign bodies and finally it means that there is no possibility of the central and-other authorities coming into conflicts with which the central government has not the legal power to cope….”. In analyzing the nature of federal state he further said in this case that “in a federal state the field of government is divided between the federal and state governments which are not subordinate one to another but are co-ordinate and independent within the sphere allotted to them. The existence of co-ordinate authorities, independent of each other is the gist of the federal principle. The federal government is sovereign in some matters and the state governments are sovereign in others. Each within its own spheres, excises its powers without control from the other, or neither is subordinate to the other. It is this feature which distinguishes a federal from a unitary constitution.”
In this case Chief Justice quoted Dr. Wheare (Modern Constitutions at P.14) to bring out the distinctions between the federal and unitary forms of government. According to Dr. Wheare in a federal constitution the powers of government are divided between a government for parts of the country in such a way that each government is legally independent within its own spheres. The government for the whole country has its own area of powers and it exercises them without any control from the governments of the constituent parts of the country, the latter in their turn exercise their powers without being controlled by the central government. In particular the legislature of the provinces have limited powers. Neither is subordinate to the other. Both are co-ordinate. In a unitary constitution, on the other hand the legislature of the whole country is the supreme law-making body of the country. It may permit other legislatures to exist or exercise their powers but it has the right in law to overrule them, they are subordinate to them”.
From all above it is very clear now that in law the concept of unitary state and federal systems cannot go hand in hand. Therefore whenever a federal or quasi federal system of government introduces the concept of unitary state will have to be abandoned. This is why the term “unitary state” has been removed from the 1997 Draft Constitution and New Draft Constitution of 2000. Accordingly sub-section (1) of Article (1) in the 1997 Draft Constitution provides that “The Republic of Sri Lanka is one sovereign and independent Republic being an indissoluble union of regions and shall be known as the Republic of Sri Lanka”. Subsection (1) of Article (1) in the Draft Constitution of 2000 provides that “The Republic of Sri Lanka is one free, sovereign and independent state consisting of the institutions of the center and of the Regions which shall exercise powers as laid down in the constitution”.
Thus it is clear now that the intention of the makers of both the Draft Constitutions is to create a federal system of government in Sri Lanka dismantling the unitary state which has been in existence upto date. Although both the draft constitutions contain salutary provisions concerning human rights, educational rights, children’s rights etc., and also constitutional safeguards to preserve territorial integrity, the impact of which would be highly inadequate to curb the dire consequences that would arise out of the other provisions in the Drafts Constitutions.
Monday 21, August 2000
Country’s territorial integrity assured under new Constitution
by Ravi Ladduwahetty
Minister of Samurdhi, Youth Affairs and Sports S.B. Dissanayake, in a special interview with the ‘Daily News, dispelled all fears among the people that the enactment and the implementation of the new Constitution would lead to a division of the country.
He also refuted speculation that the devolved provinces would be able to disintegrate as independent homelands once the Constitution is implemented, as the Constitution has empowered the Central Government to dissolve it and thereby take remedial measures to reinstate the original status.
He also said that the implementation of the new Constitution would also bring international pressure on the LTTE to down arms as their call for sympathy would be lost with the changes in international opinion.
Here, in a frank and forthright interview, Minister Dissanayake, spells out the aims of the new Constitution, while refuting misconceptions which have been associated with it.
Q: There are fears among the Sinhalese, and particularly the Maha Sangha, that the implementation of the new Constitution will lead to the division of the country. Your comments?
A: It is patently clear from the question you ask that there is an inherent fear in the Maha Sangha that there is an imminent division of the country. This is indeed a baseless fear. One cannot blame them for such a fear as they are of the opinion that there could be a threat to the cultural and religious ethos of the country.
However, this fear is baseless. Sri Lanka is not the only country in the world that power has been devolved. The best example is neighbouring India and it is with the reason of the delay in the implementation that Pakistan and Bangladesh were created.
However, regional administrations in India have been able to maintain their cultural and social independence following the devolution of power to the peripheries despite it being one country and 20 different cultures and they are living in amity. The Americans are also living in amity in regional administrations. Whenever, there is cultural, social and economic differences between the population of a country, then the best answer is the devolution of power without dividing the country. There is no alternative.
In countries such as Nigeria, there are the Shiah-Muslims and the Sindi-Muslims. This is a classic example of how power has been devolved based on their religious denominations. The devolution of political power is not an offence or a reason for the division of a country.
The third reason for the devolution is that, we should be able to give the proper place to the minorities in our administration as people who are belonging to the majority community. Otherwise, we will not be able to stop the conflicts and fights within this framework.
The next reason is that the world is telling us that the devolution of power in the north and the rest of the country is an essential prerequisite to the resolution of terrorism in the north. No country in the world has been able to solve this problem without ensuring the safety of the minorities.
However, there are the organisations such as the LTTE which are collecting funds from the organisations for their continuity and survival even if their armed struggle is confined to Sri Lanka. They have gained the sympathy of the international community that they have been discriminated against by the majority Sinhala community. They are trying to portray that image and the probabilities of their receiving assistance are more. Therefore, until such time that we are prepared to come to a compromise formula, we will not be able to either solve the problem or to gain the attention of the world.
Q: There are quite a large number of people who believe that the devolution of power to the periphery is the answer. But, what is the assurance that the Government can give that the proposed Constitution would not lead to the division of the country and how would you say that it would not be so?
A: The answer to that question is quite simple. When the Government assumed office six years ago, the entire north and a good portion of the east, was under the direct purview of the LTTE. The LTTE was virtually governing that area. Even today, there are areas that are still dominated by the LTTE and to some degree, the country seems to be divided to some degree even today.
However, the brighter side of the question is that the Tamil youth who are aspiring to be empowered with political power following the devolution of power under the Constitution, have one clear message that they can give the world.
The message is that the Sri Lankan Government is prepared to share power with the ethnic minorities through the enactment of the new Constitution. Even under those circumstances, the LTTE may be willing to persist their case with their call for a separate state. The TULF may also be under pressure in this regard. However, the peace loving people of the north could raise their voices against the LTTE. This is a great strength.
When the new Constitution is implemented and the Provincial Councils will be in operation. If the Provincial Councils attempt to declare its independence and declare it as a separate state. The Government is empowered by the new Constitution to quell that situation. That Provincial Council can be dissolved.
The military can be sent there to arrest the offenders. The Constitution also empowers the Central Government to rule that Province under Section 223 of the new Constitution. The way this happens is when the President dissolves the Council on the advice of the Prime Minister. That does not need the approval or the mandate of the PC. This cannot be examined by the Judiciary.
However, when such a Provincial Council is dissolved under Section 203 of the Constitution, the Judiciary cannot intervene. All these critics are blindly castigating the new Constitution without reading it. There are three clauses in the Constitution which clearly spell out the circumstances under which the power of the Provincial Councils can be acquired by the Government.
These critics have confused the contents of the Constitution. For example, Section 220 states that the Prime Minister can advice the President to dissolve that Council if there is a threat to sovereignty, territorial integrity of the nation. For that kind of acquisition, the approval of that respective Council is necessary. If the approval of the respective PC is not got within 90 days, the Provincial Council gets its power back.
Under Section 221 of the Constitution where the Governor, Chief Minister or an official or the Regional Advocate General (who will be the regional Attorney-General of that area) makes a recommendation that the PC be dissolved. That has to be agreed upon by the PC within 14 days.
Here, what happens is that the President of the country appoints a Judicial Committee. This Committee has one of the President’s nominees, a nominee of the deposed Chief Minister, who will jointly appoint another third person as the Chairman of the committee. There will also be a member of the Constitutional Council as well. The committee would also make recommendations as to what action the Government should be taking in this regard.
There were instances in the Indira Gandhi Government where the Councils have been dissolved. Section 221 is important in that it stops PCS from being dissolved for political victimisation. When these schemes are in operation, there will be a dramatic change in world opinion.
Q: There is also some concern by Maduluwawe Sobitha Thera that the unitary character has been removed from the new Constitution and united has been included in the new Constitution. What are the ramifications of it? He has quoted Minister Prof. G. L. Peiris as having said that these are both the same. Then, he has asked as to why the original word has been removed if the meaning has been said to be the same?
A: The new Constitution has specifically said that:” The Republic of Sri Lanka is one, free sovereign and independent state. The area that the new Constitution differs from the old Constitution is that the new one does not state that it is a united state. I also wish to state according to political science that there are only two systems of governance in the world. One is the unitary state and the other is the united state.
When a united country is ruled following power being devolved to the peripheries by one Central Government, there can’t be other political systems in the peripheries. That is an integral principle in political science. Accordingly, the unitary character of the country has been lost following the implementation of the 13th amendment to the Constitution which was brought in by former President J.R. Jayewardene. This is one country.
With the implementation of the 13th amendment to the Constitution, when a country which has regional administrations, to use the term sovereign is a deceit, both legally and constitutionally and according to the basic norms of political science. That deceit was made by President Jayewardene. One cannot refer to the sovereignty of the nation any more. This is the legal and political position.
That disparity was made by the UNP and also by former Justice Minister Vincent Perera.
But, one cannot dupe the people any more. This is one country. What we did was to amend the Constitution so that the country will state that it is united. The united aspect of the country will not be lost by the usage or non usage of one word. It is on that one word that everybody is trying to hang on as there is no other tangible reason as to why they should oppose the Constitution.
The Central Government has the jurisdiction to dissolve the Pcs at any time. It is the Pcs which have been vested with more of the administrative powers. Therefore, despite the unitary character has been lost, the united aspect is prevalent.
It is in that sense that the Constitution has been drafted and the person who drafted that was none other than the former Constitutional Affairs Minister K.N. Choksy. The entire sentence has been drafted by him and we are in agreement. This was unanimously agreed upon at the meetings of the Parliamentary Select Committee meetings which met up to 1997.
Q: The Maha Sangha is also against the Constitution as they are of the opinion that the place given to Buddhism is not good. Your comments?
There are some priests who liked the draft constitution due to the difference of opinion that they had among the different Nikayas. They had expressed these ideas. There will also be a Superior Sangha Council.
Q: If the LTTE wants to persist with the war even after the new Constitution is enacted, do you foresee international pressure for the LTTE to rescind their military strategies?
A: Yes. There will international pressures in this regard, especially from India and European nations in which the LTTE is very active. That is precisely the reason why the LTTE is mortally scared of the Constitution being implemented.
On the other hand, I would like to ask these critics as to why the LTTE is frightened to have the Constitution implemented if there is going to be division in the country. This seems to be a conflict of interest. If the Constitution is going to divide the country, then the LTTE should wholeheartedly agree.
The LTTE is aware that it will lose all the international support if the Constitution is approved. The LTTE is also aware that the Government will get all the international military assistance to crush it. That is why the LTTE has pressurised the TULF to oppose the Constitution and that is why they attempted to assassinate the President. The UNP, JVP and Maduluwawe Sobitha Thera are also frightened of the Constitution.
The UNP is opposed to the Constitution because it has to actively support the LTTE for previous favours granted. The first favour is that the LTTE allowed and canvassed for the UNP leader to contest the Presidential election last year. The UNP also is opposed to the Constitution by taking narrow political advantage by whipping up communal feelings and racialism. The JVP is opposed to the Constitution because of the racial slogans that it has in its party theme.
Q: It is well known that there are plenty of international pressures by foreign governments such as the USA, Canada, Australia to the LTTE to stop the war. In this context, why is it that there has been some intransigence on the part of the British Government over the years to react adversely against the LTTE in the light of the LTTE having its international headquarters in London?
A: The method of governance in the UK is different from that of others. Britain does not have a written Constitution. Its governance is based on tradition. Therefore, it is not easy to influence them on the conduct of an external group which is based there.
Q: Why did the Government postpone the vote on the Constitution?
A: It was certainly not due to some Buddhist monk staging a fast-unto-death or Sobitha Thera protesting or the LTTE pasting posters that we decided to postpone the debate on the Constitution Bill. It is because that we did not have enough time to have the two-thirds majority and have a referendum that we postponed it.
We expected the UNP to act with wisdom at a critical time of the nation’s contemporary history. We expected the TULF to act with honour without being a cat’s paw of the LTTE. We will go ahead with the implementation of the Constitution after the parliamentary polls through the Constitutional Council that we hope to establish.
Q: Are there any implications of the postponement of the enactment of the new Constitution.
If so, what are they?
A: Yes. There is also another dangerous situation which could arise from the postponement of the implementation of the Constitution. There is always room now for the minorities to say that the majority Sinhala community attempted to provide some sort of solution but that was stalled due to petty political differences. They could also turn round and say that the final chances of living in amity with the majority community were permanently lost.
Now, it is patently clear that they will say that the Sinhala people who were willing to give us at least a little are nor willing to give even that and they will say that they cannot live together. That will be a further positive step in their direction. They will also say that the only alternative is a separate state which is Eelam.
From the Government’s point of view, it has presented the Bill in Parliament following 60 amendments or so. There has been some difference of opinion and that is why we postponed it. This also means that the ultimate victor was Prabhakaran.
Q: The present Constitution says that its amendment or its replacement would need a two thirds majority in Parliament and also a referendum. This means that the support of the main opposition party is also mandatory. However, the President has publicly spelt out in all the election platforms that she could proceed with or without the UNP. How does the Government hope to do this?
A: The Government could name Parliament as a Constitutional Assembly and pass the Constitution Bill with a simple majority. Then, we could go to the people at a referendum.
The President has publicly asked for a mandate at all the recent elections after 1994 from the people to give her a mandate to pass the Constitution without a two thirds majority. However, this is because the Constitution brought by the UNP needs a two thirds majority for amendments.
President Jayewardene’s Constitution shattered inter-party amity and the intra-party amity that was prevalent before 1977. His electoral system also resulted in the squabbles among individuals within parties. The decisive factor in elections became money and not factors such as popularity. He snatched away all the rights of the masses that were in the Constitution.
However, the world is changing fast. Concepts and ideologies change and the laws and the Constitutions should also change in consonance. Otherwise, development cannot proceed. That is why the need has arisen to change the Constitution which would boost productivity, marketing and the provision of services etc.
That is the reason why we have had to find a way of implementing the Constitution without getting two thirds majority. However, after the 1988 Presidential elections were won by the UNP and they had thugs throughout the country. The Opposition was stifled.
Even with all the dominance, the UNP did not get two thirds at the Presidential elections. President Kumaratunga got 63% at the 1994 Presidential elections. However, the Parliamentary elections did not poll two thirds majority.
No party will get that in the future with the present Constitution. Every Government that will assume office in the future with the implementation of the J.R. Jayewardene Constitution will be frail. That is a bugbear to development of the open economy, procuring investors. Even for the completion of the war, it is so.
The Government has discussed with international legal luminaries and constitutional experts and found methods of enacting the new constitution without two thirds majority in Parliament. We have got advice in this regard and it was based on this that the President has said that we will implement the new Constitution with or without the majority.
The new Constitution emphasises on the power of the people. It says: “Sovereignty is in the people and is inalienable. Under this clause, it cannot be deviated from. We can legalise this by obtaining the consent of the people.
he provisions refuting to Buddhism in the present and draft Constitution. (the changes are shown in bold characters)
Article 9 of the ’78 Constitution reads;
The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14 (1) (e).
In companion, Article 7 (1) of the new Bill reads;
“The Republic of Sri Lanka shall give to Buddhism the foremost place and, accordingly it shall be the duty of the State to protect and foster the Buddha Sasana while giving adequate protection to all religions and guaranteeing to every person the rights and freedoms granted by paragraphs (1) and (3) of Article 15”.
Articles 10 and 14 (1) (e) of the ’78 Constitution are the same as the Articles 15
(1) and I5(3) respectively of the new Bill, except that in 15(3) the reference to “citizen in 12 (1) (e) is replaced by “person-. In the new Bill it reads; “15(1) Every person is entitled to freedom of thought, conscience and religion including the freedom to hold opinions and to have or to adopt a religion of belief of the person’s choice “.
“15 (3) Every person is entitled to the freedom, either alone or in association with others, and either in public or in private, to manifest the person’s religion or belief in worship, observance, practice and teaching”
Thus it is seen that Article 7(1) of the new Bill has an additional provision which casts a specific duty on the State to protect all other religions and to guarantee the rights granted under the new Articles 15 (1) and (3). Thus the new provisions in the new Bill will strengthen, encourage and promote conversions under State protection. This addition will therefore be counterproductive to fulfilling the State’s duty to foster Buddhism, and will dilute and undermine the advantageous position assigned to Buddhism under the ’78 Constitution.
It is also noteworthy that the provisions in the Kandyan Convention of 1815 and the Declaration of British Sovereignty of 1818 which declares the inviolability of the Buddhist religion and the protection of its rights, do not make any special mention regarding the protection of any other religion.
Further, the restrictions to which the rights under Article 14 (1) (e) of the ’78 Constitution are subjected in terms of its Article I S (7) need to be compared with the restrictions to which the corresponding Article 15 (3) of the new Bill is subjected. Article 15 (7) of the ’78 Constitution reads; “The exercise and operation of all the fundamental rights declared and recognised by Articles 12, 13(1), 13 (2) and 14 shall be subject to such restrictions as may be prescribed by law in the interests of national security, public order, and the protection of public health and morality, ….”.
Thus under the present constitution, restrictions may be prescribed by law inter alia, in the interests of the protection of public health and morality, but in the new Bill (Article 15 (4), the placing of any restriction by law on grounds of public health and morality has been removed. This will have the effect of preventing the promulgation of any laws against unethical conversions, and other immoral publications detrimental to Buddhism which even now appear from time to time.
Also while the rights under Article 14 of the ’78 Constitution applies to “citizens”, of Sri Lanka, the new Bill permits these corresponding rights to “persons” This change will open the floodgates for non-citizens too to legitimately engage in evangelical activities in this country…
In a situation where hundreds of evangelical organisations are already engaging in proselytizing Buddhist and anti-national activities, one is led to justifiably suspect that these manifest changes which have been introduced in the Reforms Bill are part of a sinister plan to protect these new evangelists in their endeavour to promote and foster their activities against other religious groups. The creation of a Supreme Council with no mandate to include the Most Ven. Maha Nayakas or the Sangha and to which members may be drawn from any faith or community to suit the whims and fancies of the Buddha Sasana Minister in terms of Article 7 (2) of the new Bill, without even consulting the Most Ven. Maha Nayakas, has been rejected by the Maha Sangha and the Buddhists with one voice. It is an insult to the Buddha Sasana and can only fit into a plan to destroy Buddhism in this country.. Are these features a reflection of the political power which NGOs in Sri Lanka are capable of wielding?.
The New Constitution via Constituent Assembly of UNP does not support
it – S. B. Dissanayake
by Ravi Ladduwahetty
Minister of Samurdhi, Youth Affairs and Sports S. B. Dissanayake, and SLFP General Secretary in a special interview with the Daily News, articulated that the Government is able to implement the new Constitution through a Constitutional Assembly if the Opposition United National Party does not support it even at a future date.
The Government could convert the Parliament into a Constitutional Assembly and pass the new Constitution with a simple majority and then go to the people at a referendum, he noted.
The President has asked for a mandate from the people at all elections after 1994 to pass the Constitution as the UNP’s support was not forthcoming.
He also said that the implementation of the new Constitution would also bring international pressure to the LTTE to give up arms. “ The European nations in which the LTTE is active will bring pressure on the LTTE to stop the war. Consequentially, there will be a drain on the LTTE’s funding sources, he said.
There will be a drastic change in international opinion. The LTTE’s call for sympathy would be lost with the changes in international opinion.
The Minister also dispelled fears among the people that the enactment and the implementation of the new Constitution would lead to the division of the country.
He also refuted speculation that the devolved provinces would be able to disintegrate themselves as independent homelands once the Constitution is implemented, as the Constitution has empowered the Central Government to dissolve it and thereby take remedial measures to reinstate the original status. “The offenders could even be arrested,” he said.
He also said that it was certainly not due to some Buddhist monk staging a fast- unto death, Sobitha Thera protesting or the LTTE pasting posters that the Government decided to postpone the debate on the Constitution Bill. “It is because we did not have enough time to have the two thirds majority and have a referendum that we postponed it”, he said.
He said:” We expected the UNP to act with wisdom at a critical time. We expected the TULF to act with honour without being a cat’s paw of the LTTE. We will go ahead with the implementation of the Constitution after the Parliamentary polls through the Constitutional Council that we hope to establish.
There is also another dangerous situation which could arise from the postponement of the implementation of the Constitution. There is always room now for the minorities to say that the majority Sinhala community attempted to provide some sort of solution but that was stalled due to petty political differences. They could turn round and say that the final chances of living in amity with the majority community was permanently lost.
Now, it is patently clear that they will say that the Sinhala people who were willing to give us at least a little are not willing to give even that and they will say that they cannot live together. That will be a further positive step in their direction. They will also say that the only alternative is a separate State which is Eelam.
From the Government’s point of view, it has presented the Bill in Parliament following 60 or so amendments. There have been some differences of opinion and that is why we postponed it. This also means that the ultimate victor was Prabhakaran, he added.
Saturday 19, August 2000
Constitution making – why consult the Sangha and the LTTE?
Liberal Perspectives by Harim Peiris
The recent national debate on the proposed new constitution has had an interesting development with the Opposition UNP and certain sympathetic sections of the private sector media, adopting the position that the new constitution should first be accepted by the Sangha and the LTTE before being presented to Parliament or at least prior to receiving UNP support.
While this political position of the UNP, might be opportunistic politics at its very worst, the thesis or the premise that the Sangha and the LTTE should approve a constitution first before the country’s supreme legislature approves it, is a serious issue with ramifications for national sovereignty and deserves closer examination and analysis.
Firstly what is being proposed here is not a general consultative process, such as has been occurring for the past five years regarding the Government’s package as the reforms are popularly known. It is well established that Sri Lanka’s proposed constitution of 2000 has been the most widely debate and discussed constitution when compared with either the constitutions of 1972 or 1978. Draft versions have been published in its entirety in the national media, thereby distributed widely and debated extensively through the mass communication channels of private and state TV, none of which occurred with regards to the 1972 or 1978 constitutions. Further the two year period of the Parliamentary Select Committee on the constitution permitted written submissions by all interested persons and parties while those invited presented oral submissions. Accordingly, by prior Sri Lankan standards or even global standards, the draft constitution was discussed and debated openly and widely in public for over half a decade, hardly a secretive or rushed process.
What is being proposed here by the UNP is that the Sangha, perhaps the Venerable Mahanayakes be permitted an essential veto on the proposed constitutional reforms. When a majority of the Sri Lankan electorate specifically in the Presidential election of December 1999 gave a clear mandate to implement the new constitution it is inconceivable that unelected religious leaders or even a terrorist despot can be given a veto over the policies of a popularly elected government, with a specific mandate from the people.
The Sangha has no such political legitimacy or mandate from the people, with regard to political affairs, the elected President of this country does. The Sangha attempt to draw their legitimacy in matters temporal as opposed to spiritual from their historic role in advising the monarchy of this country. But therein lies the crucial difference. Historical Sri Lanka was a feudal monarchy and the clergy was essentially an important representative of the common man’s interest before the royal throne. However independent Sri Lanka is a representative democracy with a popularly elected government?
Accordingly, a political role for the Sangha is as anachronistic as Sri Lanka’s royalty or British peers in the House of Lords. Surely the political role of the Sangha has to have changed when Sri Lanka was transformed from an absolute monarchy to a representative democracy.
Even arguing for a continued advisory and consultative role for the Sangha in modern Sri Lanka, as indeed presently exists through the Sangha Council and other more informal channels. It’s difficult to argue that they can wield what amounts to an effective veto on a fundamental policy platform which has been endorsed and mandated through popular election.
The opposition of the Sangha to political reform is not to any of the fine print in the draft constitution, so whether one is talking about the drafts of 1995, 1997 or 2000 is irrelevant. The opposition by a section of the Buddhist clergy is to the very principle of power-sharing and devolution of power. It is a basic and fundamental opposition to the broad concept of devolution and is irreconcilable with power sharing and devolving political power as a solution, a vision and political solution of all national leaders of independent Sri Lanka be it the BC pact, Dudley’s pact, even JR’s 13th amendment or the President’s devolution package. Further, at present there is genuine diversion of views within the Sangha itself on devolution of power. However with regards to the basic issue of minority rights and aspirations, we as a democratic society can choose to be led on public policy issues by our elected leaders, or by religious leaders that desire to oppose a popular mandate of the people and minority right.
Further what of the Tamil people themselves. An important factor is that elected governments represent ethnic and religious minorities as well as the majority, while the Sangha obviously represents only Sinhala Buddhists, with Tamil Buddhists practically a non-existent demographic feature. Accordingly, in fact, arguing for a political role for the Sangha in Tamil majority areas is in itself an argument for extensive power devolvement and power sharing. How can religious leaders who only represent Sinhala people mandate policy for Tamil people?
With regards to the LTTE, they seek a separate state and not devolved power. What is required is a political framework that will politically marginalize the LTTE. They realise the package will do that, which is why they seek to kill its proponents from the President to Dr. Tiruchelvam. Further, how can we give the LTTE a veto over what the Sri Lankan parliament should legislate? A new constitution should reflect the will of the people and the mandated policy of the elected government. It would, however, be a framework for future discussion, but it first needs to be the basic law of the land. Tamil hearts and minds cannot be won over in a majoritarian and unitary framework that fails to recognise the multi-ethnic and multi-religious nature of Sri Lankan society.
Friday 18, August 2000
Break-up of Lanka not possible under proposed new Constitution
by Lynn Ockersz
There is clearly no basis to current fears that the proposed new constitution would lead to a break-up of Sri Lanka. All the necessary constitutional safeguards have been taken against such an eventuality.
These points emerged from an interview given to this writer by Dr. Jayampathy Wickremeratne, consultant, Justice, Constitutional, Ethnic Affairs and National Integration Ministry. Dr. Wickremeratne played a key role in drafting of the new constitution.
Dr. Wickremeratne said that the Government is intending to solve a political problem through the new constitution. This is not a mere question of terrorism. However terror is not the disease but its manifestation. The disease is an imbalance in political power among the communities. Political power is important to communities because several things flow for it; for instance, use of one’s language, job opportunities, economic and educational opportunities and distribution of resources – all depend on political power. If the distribution of political power in multi-ethnic societies is imbalanced the inevitable result is that the communities without political power become disadvantaged. So in multi-ethnic societies, sharing of political power in an equitable manner among communities is a must for stability.
Demands of minorities differ when they are dispersed geographically in a country. The demand for regional autonomy may not be advanced but equality may be demanded in such a situation. Equality may be pressed for by such dispersed minorities in the exercise of executive power, in respect of legislative representation, employment, education, distribution of resources etc.
Where a minority is geographically concentrated, the demand is for regional autonomy. This is inevitable. When people with a common cultural identity are geographically concentrated, they would want to express their cultural identity in political form. Thus arises the demand for regional autonomy.
Dr. Wickremeratne went on to explain that if the South Indian invasions of Sri Lanka were successful and Lanka became a Tamil majority country with the Sinhalese as a minority, geographically concentrated in the Ruhuna, they would ask for regional autonomy and if the Tamil majority stubbornly refused this, the demand would necessarily evolve into that for a separate state.
What is the international experience in these matters? The demand for separation has been met by genuine regional autonomy and not a single example of a community using devolved power to break-away has emerged. So the Government looked at our problem as one of political power. That is why it offered extensive devolution.
Devolution is nothing new in Sri Lanka. But the 13th Amendment while devolving power permits the Centre to take away with the left hand what is given with the right. Devolution is necessary as a viable alternative to a separate state.
The LTTE has used the grievances of the Tamils and is taking the position that the answer is a separate state. On the Sinhala side, there are those who say there are no Tamil grievances. This helps the LTTE more. The LTTE propaganda is that the Sinhala people are not prepared to give any political power to the Tamils and that the Sinhalese want to use their majority to rule the entire country from one centre of power.
So what has to be offered must be a political challenge to the LTTE.
It must be something which the LTTE would find hard to reject outright. It must be acceptable to the vast majority of moderate Tamils yearning for peace and a political settlement.
Coming to the proposed new constitution it has 256 articles. There are only four clauses over which the PA and the UNP do not agree, Dr. Wickremeratne pointed out. Mr. Ranil Wickremesinghe himself listed these in parliament. Two of these are minor and could be resolved within a few minutes of talks. Namely, the composition of the Constitutional Council and future amendments to constitutional provisions relating to devolution. The third relates to the Interim Council for the North-East. The PA and the UNP agreed to have a nominated Interim Council for five years. The Tamil parties took the view that more time must be given to the communities to enable them to work together. If that is done, they were willing to agree to a referendum being held in the entirety of the East. So the PA proposed that the nominated Interim Council be followed by an elected Interim Council for the North-East, with a referendum being held in the 10th year in the entirety of the East. This was put to the UNP which did not reject it, but wanted time to consider it. The fourth issue relates to the Executive Presidency. A compromise was possible but the UNP was not prepared to talk about it, Dr. Wickremeratne explained.
While meaningful devolution is given there are extensive safeguards to prevent any possible separation. All subjects and functions which are essential to maintaining unity and sovereignty of the country are retained by the Centre. These include, Defence, National Security, National Police, Foreign Affairs, National Planning, Airports, Ports, Shipping and Navigation, Administration of Justice, Aviation etc. In several key areas the regions have to work within national plans. These include: Health, Education, Forestry, the professions, use of State land etc.
There are emergency powers, which one hopes the Centre would use only when absolutely necessary. For instance, Article 219 of the new constitution, which deals with the use of the Public Security Ordinance. Under this, emergency regulations can be promulgated even in respect of matters set out in the Regional List, without any reference to Regional Councils and with parliamentary approval only.
Article 220 gives the Centre powers to intervene in regions where the security or public order of those regions are threatened. For instance, if a regional administration is unable to maintain public order the Centre can intervene. It can use the armed forces and national police to defuse the crisis.
Emergency regulations can be made by the Centre relating to any matter in the chapter on Defence, National Security and Law and Order. This would permit the restriction or complete take over of police powers of a region. But action under Article 220 could be unilateral only up to 90 days. If the Centre is to continue intervening the relevant Regional Council must consent after that period. If the situation is very grave, the Centre could act under Article 223 which gives very wide powers to the Centre, subject to parliamentary approval only. The President may take over all or any powers of the Governor, Chief Minister, Board of Ministers or any other regional authority. The President can even take the extreme step of dissolving the Council.
Sufficient attention has not been drawn to the safeguards for Sinhalese and the Muslims in the Interim Council. There will be Deputy Chief Ministers representing the Sinhalese and the Muslims. The core subjects to be assigned to them are laid down in the constitution itself, for instance, Article 245(2). Key decisions affecting the Sinhala and Muslim minorities need to be supported by a majority of members of the two communities. Similar provisions are found in the Northern Ireland Agreement.
It was further pointed out that appointments to the Public Service in the North-East should reflect the ethnic composition of the region. Each community will have a Cultural Committee. There will also be an Equality Commission.
The impending election appears to have influenced the attitude of political parties and politicians towards the constitution, Dr. Wickremeratne pointed out. Right throughout the UNP-PA talks, the UNP insisted on the proposal being sent to the LTTE. But no sooner they heard the noises from the vociferous minority among the extreme South, they tried to jump the bandwagon. But in the process the UNP alienated the minorities, for instance, the TULF. Several TULF MPs were inclined to vote for the Bill but at least two of them got cold feet because they thought they could be LTTE targets in the election campaign, Dr. Wickremeratne said.
He further commented that even on the PA side, not all leaders came out in support of the Bill. Again probably because of the upcoming general election.
‘After the election, I think things will change for the better. I hope the UNP and PA would be able to agree even on the four outstanding issues,’ were Dr. Wickremaratne’s concluding observations.
Article 9 of the ’78 Constitution reads;
The Republic of Sri Lanka shall give to Buddhism the foremost place and
accordingly it shall be the duty of the State to protect and foster the Buddha
Sasana, while assuring to all religions the rights granted by Articles 10 and 14 (1) (e).
In companion, Article 7 (1) of the new Bill reads;
“The Republic of Sri Lanka shall give to Buddhism the foremost place and, accordingly it shall be the duty of the State to protect and foster the Buddha Sasana while giving adequate protection to all religions and guaranteeing to every person the rights and freedoms granted by paragraphs (1) and (3) of Article 15”.
Articles 10 and 14 (1) (e) of the ’78 Constitution are the same as the Articles 15 (1) and I5(3) respectively of the new Bill, except that in 15(3) the reference to citizen in 12 (1) (e) is replaced by person-. In the new Bill it reads; 15(1) Every person is entitled to freedom of thought, conscience and religion including the freedom to hold opinions and to have or to adopt a religion of belief of the persons choice .
“15 (3) Every person is entitled to the freedom, either alone or in association with others, and either in public or in private, to manifest the person’s religion or belief in worship, observance, practice and teaching”
Thus it is seen that Article 7(1) of the new Bill has an additional provision which casts a specific duty on the State to protect all other religions and to guarantee the rights granted under the new Articles 15 (1) and (3). Thus the new provisions in the new Bill will strengthen, encourage and promote conversions under State protection. This addition will, therefore, be counterproductive to fulfilling the State’s duty to foster Buddhism and will dilute and undermine the advantageous position assigned to Buddhism under the ’78 Constitution.
It is also noteworthy that the provisions in the Kandyan Convention of 1815 and the Declaration of British Sovereignty of 1818 which declares the inviolability of the Buddhist religion and the protection of its rights, do not make any special mention regarding the protection of any other religion.
Further, the restrictions to which the rights under Article 14 (1) (e) of the ’78 Constitution are subjected in terms of its Article I S (7) need to be compared with the restrictions to which the corresponding Article 15 (3) of the new Bill is subjected. Article 15 (7) of the ’78 Constitution reads; “The exercise and operation of all the fundamental rights declared and recognised by Articles 12, 13(1), 13 (2) and 14 shall be subject to such restrictions as may be prescribed by law in the interests of national security, public order, and the protection of public health and morality, ….”.
Thus under the present constitution, restrictions may be prescribed by law inter alia, in the interests of the protection of public health and morality, but in the new Bill (Article 15 (4), the placing of any restriction by law on grounds of public health and morality has been removed. This will have the effect of preventing the promulgation of any laws against unethical conversions, and other immoral publications detrimental to Buddhism which even now appear from time to time.
Also while the rights under Article 14 of the ’78 Constitution applies to “citizens”, of Sri Lanka, the new Bill permits these corresponding rights to “persons” This change will open the floodgates for non-citizens too to legitimately engage in evangelical activities in this country…
In a situation where hundreds of evangelical organisations are already engaging in proselytizing Buddhist and anti-national activities, one is led to justifiably suspect that these manifest changes which have been introduced in the Reforms Bill are part of a sinister plan to protect these new evangelists in their endeavour to promote and foster their activities against other religious groups. The creation of a Supreme Council with no mandate to include the Most Ven. Maha Nayakas or the Sangha and to which members may be drawn from any faith or community to suit the whims and fancies of the Buddha Sasana Minister in terms of Article 7 (2) of the new Bill, without even consulting the Most Ven. Maha Nayakas has been rejected by the Maha Sangha and the Buddhists with one voice. It is an insult to the Buddha Sasana and can only fit into a plan to destroy Buddhism in this country.. Are these features a reflection of the political power which NGOs in Sri Lanka are capable of wielding?.
The answer to some of the above issues is likely to be that these changes are to bring our new constitution in line with internationally accepted Fundamental Rights. It must be pointed out that the Constitution of Malaysia while giving the right to every person or group to profess and practice their religion, provides that the “law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. It is also common knowledge that none of the other Islamic countries permit the propagation of any form of religious activities other than Islam and that even the import of statues and literature of other religions is prohibited.
Section 19 of the Constitution of Nepal reads – “every person shall have the
freedom to profess and practice his own religion as handed down to him from
ancient times having due regard to traditional practices, provided that no
person shall be entitled to convert any person from one religion to another ‘
Article 25 (1) of the Indian Constitution allows the freedom of conscience and free profession ,practice and propagation of religion, subject to public order, morality etc. But in a 1977 judgement, the Supreme Court of India, while not exactly banning conversions, ruled that it could not be considered a fundamental right. The Court pointed out that conversions would impinge on the freedom of conscience guaranteed to citizens and further stated that if such action disturbed community life, it would amount to disturbing “public order’’. This judgement which was the result of an appeal against the judgement of the Orissa High Court which inter alia prohibited conversions by inducements which was not challenged. In the order of the High Court they proceeded to define ‘force’ and “ inducement” and included the threat of divine displeasure’ as an act of force. It is not uncommon for proselytizers to threaten divine displeasure in order to convert people.
The above are all countries where the evangelists have attempted to impose their faith on others and effective steps have been taken or are in hand to curb their activities.
In 1995, when constitutional reforms were under consideration by the Parliamentary Select Committee, SUCCESS Sri Lanka proposed certain amendments to the Constitution. Among them, one was to include a proviso to Article 10 to the effect that no person shall directly or indirectly cause or attempt to cause any other person to adopt a religion or belief by any inducement including the offer of any reward or any benefit or by extending any threat, intimidation or harm or by any attempt thereo£ This has not been given effect to in the Bill.
The provisions in the new Bill are no solution to the issues that have been highlighted above. These provisions if accepted will further aggravate the present problems which indeed is likely to turn out to be grave. The new evangelists have proved to be a problem to the long established mainstream churches also. Therefore any form of constitutional reforms must necessarily include provisions on Religion and Fundamental Rights which will not stand in the way of stemming the rising tide of-evangelism in the country. The provisions in the constitutions of Malaysia and Nepal and the landmark judgement in India where public debate on this subject is taking place, should be a guide to such reforms on this subject. Urgent reform on these lines is necessary if the inalienable constitutional duty of the State to protect and foster the Buddha Sasana is to be given a meaningfull and practical interpretation .and is not to remain a dead letter.
New Constitution Bill:
Diplomats baffled by UNP’s stance
The Diplomatic community in Sri Lanka is perplexed at the UNP being against the new Constitution Bill which ensures an administration safeguarding the rights of minorities within a unitary State thereby defeating the aims of the LTTE who stand for establishing a separate State within Sri Lanka.
Diplomatic personnel who have been following political developments here closely are disappointed that the UNP has gone back on its pledge to cooperate with the Government to solve the ethnic problem, diplomatic sources said.
“The UNP had agreed to more than 95 percent of the Constitutional proposals. They waited until the last moment to withdraw their support. It is difficult to understand the UNP’s motive for acting in this manner because this was an opportunity for reconciliation and peace,” a senior diplomat said.
The Daily News understands that the reports sent to their home countries last week by diplomatic personnel have included details on UNP’s exit from the Constitutional reform process. “The basic message seems to be that the UNP cannot be relied upon as a responsible opposition,” the diplomat said.
Diplomatic observers have noted that the UNP had suddenly abandoned its enthusiasm for a ‘bipartisan approach’ to the ethnic problem as enunciated in the Liam Fox agreement. The UNP has also told visiting dignitaries like Carl Inderfurth and Erik Solheim, who have been playing a major role in diplomatic initiatives on the ethnic problem, that it would cooperate with the Government on this issue.
The diplomats have also noted that former Minister of Constitutional Affairs in the UNP Government K. N. Choksy PC had contributed towards drafting this new Constitution in accordance with the decisions reached by the two parties.
The diplomatic community, who have scrutinised the New Constitution Bill, are reported to be puzzled by some blatant misinterpretations of the document by the UNP. They observe that the UNP has made statements to the effect that the new Constitution has failed to grant recognition to Buddhism, when in fact it has granted foremost recognition to Buddhism. The Constitution Bill surpasses what had been granted under the 1978 Constitution.
It has also been confirmed that the propaganda carried out by the UNP stating that the new Constitution has included provisions to sing the National Anthem in Tamil is also based on a false premise. The provision to sing the National Anthem in Tamil had been there since 1948. In fact, even the 1978 Constitution presented by the UNP contained provisions to the same effect. Even in 1948, at the first Independence Day celebrations, the National Anthem was sung in Tamil.
In the sphere of education, the new Constitution has made it compulsory for children to receive education in schools at least until the age of 14. This too has been misinterpreted by the UNP stating that free education has been eliminated after the age 14 years. The new Constitution, however, has very clearly guaranteed free education to every child from Grade 1 to University.
While the process of drafting the Constitution lasted five years, three important matters that received everybody’s attention were land, police powers and the unit of devolution. As both the UNP and PA had arrived at a consensus, reflected in Article 143 of the new Constitution, whereby ownership of all lands come under the Central Government. If any land is needed by a particular provincial council it has to apply to the Central Government accordingly.
Article 145(1) of the new Constitution states that Parliament shall by law provide for the establishment of a National Land Use Council, the Constitution of which shall ensure the equal representation of the Central Government on the one hand and the Regions on the other and the equitable representation of all major communities.
In terms of Article 142(1) The foreshore, all lands and mines, minerals and other things of value in the ocean within the territorial waters, rights pertaining to the continental shelf and rights pertaining to the Exclusive Economic Zone of Sri Lanka, shall continue to vest in the Republic and shall be held by the Central Government.
With regard to the police service, Article 248 states that there shall be a Police Commission and a Police Service for the Northern and Eastern Regions.